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 on port State control (recast)
Date: 2008-06-11
Institutions: European Commission
Subjects: harbour installation, international standard, maritime safety, maritime transport, prevention of pollution, transport safety, working conditions

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COMMISSION OF THE EUROPEAN COMMUNITIES 

Brussels, 11.6.2008 
COM(2008) 208 final 

2005/0238 (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 on port State control (recast) 

(presented by the Commission) 

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2005/0238 (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 on port State control (recast) 

1. 

BACKGROUND 

Date on which the proposal was sent to the European Parliament 
and to the Council: 
[document COM(2005) 588 final – 2005/0238 (COD)] 

Date of the opinion of the Committee of the Regions: 

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

24.01.2006 

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: 

17.04.2008 

2. 

OBJECTIVE OF THE COMMISSION PROPOSAL 

The proposal to recast Directive 95/21/EC on port State control of shipping is one of a series 
of measures aimed at strengthening and supplementing existing maritime safety legislation. 

In addition to the work needed to consolidate the Directive into a single text in order to make 
it  more  coherent,  the  Commission  aims  to  completely  overhaul  the  existing  system  of  port 
State  controls  to  focus  on  substandard  ships,  which  compete  unfairly  with  the  high-quality 
European fleet. 

The objective is twofold: on one hand, to replace the individual target per Member State to 
inspect 25% of ships by a collective target at European Union level to inspect all ships and, on 
the  other,  to  inspect  high-risk  ships  more  frequently.  Too  many  substandard  ships  currently 
slip through the net. The new system will prevent this, while at the same time rewarding ships 
of  a  high  standard  by  making  them  subject  to  fewer  controls,  which  will  also  help  to  make 
more effective use of resources. 

Substandard ships which simply pass through European waters without calling at a port pose a 
particular  risk.  This  is  why  the  Commission  also  intends  to  step  up  inspections  of  ships 
anchored at sea. 

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In  addition,  the  Commission  proposes  strengthening  the  arrangements  for  banning  ships  by 
extending  them  to  all  categories  of  ships,  introducing  a  minimum  duration  of  the  ban  and 
providing  for  a  permanent  ban  on  ships  which  have  been  banned  twice  and  are  detained  a 
third  time.  The  Commission  also  proposes  publishing  a  black  list  of  poorly  performing 
shipping companies. 

Lastly,  the  technical  aspects  of  the  proposal  are  based  on  the  work  carried  out  by  experts 
under the Paris Memorandum of Understanding (Paris MoU) on Port State Control. 

3. 

COMMENTS ON THE COMMON POSITION 

The principles and the main arrangements proposed by the Commission to implement the new 
inspection scheme are generally supported by the Council in its common position, which was 
adopted  unanimously  (Malta  abstained).  The  Council  therefore  supports  the  new  scheme, 
which provides for controls on 100% of ships, with the worst ships a priority. 

The  Commission  endorses  the  Council's  approach  regarding  the  flexibility  of  the  new 
inspection  scheme.  This  mechanism  is  essential  in  ensuring  the  new  scheme  is  sufficiently 
flexible.  However,  regarding  the  authorised  ceiling  for  missed  inspections,  the  Commission 
feels that the 5% rate of missed inspections which it had proposed and which is also in line 
with  the  current  Directive,  is  a  realistic  approach.  The  Commission  cannot  therefore  accept 
raising this percentage to 10% for medium or low-risk ships as suggested by the Council, as 
this would detract from the main objective of the new inspection scheme, namely to inspect 
all ships calling at ports in the European Union. 

Moreover,  by  removing  the  permanent  ban  and  replacing  it  with  a  temporary  one  of  up  to 
36 months  depending on several criteria, the Council has deviated significantly from one of 
the  most  important  aspects  of  the  Commission's  proposal.  The  Commission  cannot  endorse 
the Council's approach regarding this issue. 

To a lesser extent, the way in which the Council deals in its common position with the matter 
of  inspections  at  anchor  also  poses  problems.  The  Council  has  not  retained  the  inclusion  of 
ships anchored outside ports in the scope of the Directive and simply refers to the concept of 
ports'  jurisdiction.  The  construction  proposed  by  the  Council  risks  being  interpreted 
differently  and  restrictively  by  different  Member  States  and  could  potentially  make  this 
provision meaningless. The Commission does feel it is essential to be able to inspect ships at 
anchor.  Moreover,  this  is  what  the  Council  itself  called  for  after  the  Prestige  disaster. 
Substandard ships which simply pass through European waters without calling at a port pose a 
particular risk. An inspection at anchor by the port State may be the only way to inspect these 
ships. 

4. 

DETAILED COMMISSION COMMENTS 

4.1. 

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

Amendments 1, 4, 5, 7, 15, 16, 18, 19, 22, 26, 27, 30, 32, 33, 38, 53, 55, 72, 83, 84, 86, 87, 
90, 94, 95, 98, 101, 102, 105, 106 provide useful clarifications of the Commission's proposal, 
in particular at a technical level. It was useful to remove the provisions relating to the current 
inspection scheme which have become obsolete, as well as to further define the rules of the 

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new  inspection  scheme,  taking  into  account  the  progress  made  by  experts  under  the  Paris 
Memorandum of Understanding on Port State Control. 

4.2. 

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

The Commission feels that amendments 2, 3, 6, 8, 9, 14, 20, 24, 25, 28, 29, 31, 39, 41, 43, 44, 
45, 47, 48, 49, 50, 51, 52, 57, 58, 59, 60, 61, 62, 63, 64, 65, 67, 69, 70, 71, 74, 75, 76, 77, 78, 
80, 81, 85, 88, 89, 92, 97, 99, 100, 103 provide useful clarifications of the text of the proposal. 
It therefore regrets that the Council did not include these amendments in its common position. 

Amendment 17 which introduced a definition of ports made it possible (by slightly amending 
this definition) to include anchorages in the scope of the Directive. 

Lastly,  the  Commission  was  in  favour  of  amendment  54  concerning  refusal  of  access  and 
more specifically the permanent ban. 

4.3. 

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

Amendment 73 serves no purpose as it introduces a reference to the tasks to be undertaken by 
the  European  Maritime  Safety  Agency,  which  are  adequately  described  in  the  horizontal 
Regulation (EC) No 1406/2002 establishing the Agency. 

Amendment 91 concerning the reduction of the "time window" for inspecting low-risk ships 
from  24/36  to  24/30  months  is  not  in  line  with  the  overall  objective  of  the  Commission's 
proposal, which aims to reduce the burden of inspections for high-standard ships. 

Lastly,  the  parts  of  amendments  34,  36  and  37  concerning  the  methods  for  dividing  up 
inspections between Member States are not included as they rule out any possible recourse to 
a  flexibility  mechanism  for  carrying  out  inspections.  A  mechanism  of  this  kind  is 
indispensable in ensuring the smooth running of the new inspection scheme. 

5. 

CONCLUSIONS 

The  Commission  takes  note  of  the  Council's  common  position,  which  was  unanimously 
adopted and which does not generally amend either the objectives or the spirit of its proposal, 
but wishes to point out that its views differ on several specific points, such as removing the 
permanent  ban  and  replacing  it  by  a  temporary  one,  and  to  a  lesser  extent  on  the  Council's 
approach  concerning  inspections  at  anchor  and  increasing  the  authorised  ceiling  for  missed 
inspections from 5% to 10%.  

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