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 adopted by the Council with a view to the adoption of a Directive of the European Parliament and of the Council establishing the fundamental principles governing the investigation of accidents in the maritime transport sector and amending Directives 1999/35/EC and 2002/59/EC
Date: 2008-06-11
Institutions: European Commission
Subjects: code of conduct, fact-finding mission, maritime safety, maritime transport, transport accident, transport safety

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COMMISSION OF THE EUROPEAN COMMUNITIES 

Brussels, 11.6.2008 
COM(2008) 206 final 

2005/0240 (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 adopted by the Council with a view to the adoption of a Directive of 
the European Parliament and of the Council establishing the fundamental principles 
governing the investigation of accidents in the maritime transport sector and amending 
Directives 1999/35/EC and 2002/59/EC 

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2005/0240 (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 adopted by the Council with a view to the adoption of a Directive of 
the European Parliament and of the Council establishing the fundamental principles 
governing the investigation of accidents in the maritime transport sector and amending 
Directives 1999/35/EC and 2002/59/EC 

1. 

BACKGROUND 

Date of transmission of the proposal to the European Parliament and 
the Council (document COM(2005) 590 final – 2005/0240 (COD)): 

13.02.2006 

Date of the opinion of the Committee of the Regions: 

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

15.06.2006 

13.09.2006 

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

25.04.2007 

Date of adoption of the common position: 

06.06.2008 

2. 

OBJECTIVE OF THE COMMISSION PROPOSAL 

In view of the shortcomings in the relevant IMO standards and given that it is essential that 
the causes of maritime disasters be identified in order to prevent future accidents, the proposal 
aims at promoting the obligation to conduct a systematic investigation based on high-quality, 
harmonised standards after major accidents at sea. 

3. 

COMMENTS ON THE COMMON POSITION 

Besides the amendments which are essentially drafting changes and do not change the scope 
of the text, but make it more specific or clearer (see in particular Articles 1, 3, 6, 10, 11, 12, 
14, 16 and 19), attention should be drawn to the following differences between the common 
position and the original proposal: 

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in  Article 2,  the  maximum  length  of  fishing  vessels  to  be  exempted  from  the 
Directive has been decreased from 24 metres to 15 metres; 

in  Article 4,  the  provisions  relating  to  the  independence  of  the  investigation  have 
been  redrafted  to  safeguard  any  prerogatives  of  the  judicial  authorities  without 
compromising the fundamental principle that the investigation is independent; 

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in Article 5, investigation is no longer mandatory for serious marine casualties; only 
very  serious  casualties  have  to  be  the  subject  of  a  systematic  investigation  as 
stipulated by the new code for marine casualty investigations, which is currently in 
the process of being adopted by the IMO;  

All other accidents at sea must undergo an examination procedure to determine whether or not 
it would be useful to proceed to the investigation stage; distress alerts, on the other hand, have 
been excluded from the examination procedure which, given the large number of alerts of this 
type,  would  represent  a  very  heavy  workload  for  the  national  administrations  without 
providing any demonstrated added value in terms of maritime safety. 

The Council has also restricted the investigation methodology provided for in Article 5(4) to 
the  setting  out  of  mandatory  principles  for  conducting  investigations  and  has  added  a 
reference to guidelines which have to be developed by the Commission and Member States to 
implement the principles contained in the methodology. 

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in  Article 7,  the  rights  of  Member  States  participating  in  an  investigation  as  a 
substantially interested Member State are detailed; 

in  Article 8(1),  the  provisions  ensuring  the  independence  of  the  investigative  body 
have been reformulated without calling this independence into question; furthermore, 
special provisions have been added for landlocked Member States with no fleet who 
may simply identify a local contact point to cooperate in the investigation; 

Article 9 has been reformulated to reflect the division of responsibilities between the 
authorities of certain Member States without the guarantees afforded by this Article 
being called into question; 

in  Article 14(1),  the  investigative  bodies  are  given  the  option  of  producing  only  a 
simplified report for investigations which do not concern very serious accidents and 
whose findings would not help prevent future accidents. 

4. 

DETAILED COMMISSION COMMENTS 

4.1. 

Amendments accepted by the Commission and incorporated in full or in part in 
the common position 

Amendment 5 is acceptable in that it stresses the fact that the investigations provided for by 
the  proposal  are  not  aimed  at  determining  liability  or  apportioning  blame.  However,  the 
Commission  is  of  the  opinion  that  it  should  be  reworded  so  that  the  proposal  preserves  the 
principle  whereby  the  authority  responsible  for  the  investigation  should  not  refrain  from 
disclosing all the causes by claiming that liability could be inferred from those findings. This 
is precisely what the new wording adopted by the Council suggests. 

4.2. 

Amendments accepted by the Commission but not incorporated in the common 
position 

Amendments 3 and 22 state that the guidelines on the fair treatment of seafarers, adopted on 
27 April 2006 by the IMO Legal Committee, should be taken into account; these amendments 
are acceptable only insofar as they refer to accident investigations. 

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Amendment  9  sets  out  to  further  protect  the  confidentiality  of  evidence  obtained  during  an 
investigation through cooperation with other Member States. Such protection is conceivable 
but only on condition that it is not more restrictive than the protection afforded to the same 
evidence  in  the  State  in  which  it  has  been  received  where,  pursuant  to  Article 9  of  the 
proposal, the judicial authority may require that the evidence be communicated.  

Amendment  12,  which  specifies  the  period  within  which  the  investigation  must  start,  and 
amendment 15, which sets out to guarantee the independence of the investigative bodies vis-
à-vis the authorities responsible for judicial inquiries, are in the Commission's opinion useful 
clarifications of the original proposal. 

4.3. 

Amendments rejected by the Commission and not incorporated in the common 
position 

Amendments  1  and  14  put  the  emphasis  on  the  investigative  bodies'  resources  but  do  away 
with  their  permanent  nature  and  dilute  the  provisions  relating  to  their  independence  and 
impartiality.  

Amendments 2 and 19 aim at incorporating recommendations for preventing further accidents 
into the  common methodology, which  has to be adopted through the comitology procedure. 
This methodology is not the appropriate instrument for making such recommendations. 

Amendments  7  and  20,  which  explain  the  background  to  the  recommendations  which  the 
Commission  might  make,  state  that  EMSA  is  to  provide  assistance;  however,  EMSA  may 
only be assigned responsibilities through the Regulation which establishes it. 

Amendment  13  introduces  an  unnecessary  mechanism  which  is  difficult  to  implement,  to 
resolve conflicts between Member States when they are unable to agree which of them should 
be the lead investigating State.  

Amendment 16 removes the possibility for the judicial authorities of Member States to be sent 
certain – in principle, strictly confidential – information (and in particular witness interviews) 
collected in the course of an investigation. In so doing, it fails to recognise the prerogatives of 
judges in many Member States. 

Amendment 18 puts too heavy a workload on the Commission by forcing it to report to the 
Parliament every three years on the state of implementation of the Directive. 

5. 

CONCLUSIONS 

The common position, which was adopted unanimously, does not require any changes to the 
original proposal which the Commission could not accept. 

The  Commission  expressed  regret  regarding  the  addition  to  Article 8(1)  of  provisions  for 
landlocked Member States without a fleet, but it should be noted that the local contact point 
which these States have to designate must be independent.  

The Commission therefore recognises that the common position alters neither the aims nor the 
spirit of the proposal and is therefore able to accept it.  

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