Commission Opinion pursuant to Article 251(2), third subparagraph, point (c) of the EC Treaty on the European Parliament's amendments to the Council Common Position regarding the proposal for a Directive of the European Parliament and of the Council on port State control (recast) amending the proposal of the Commission pursuant to Article 250 (2) of the EC Treaty
Date: 2008-11-26
Institutions: European Commission
Subjects: harbour installation, international standard, maritime transport, prevention of pollution, transport safety, working conditions

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COMMISSION OF THE EUROPEAN COMMUNITIES 

Brussels, 26.11.2008 
COM(2008) 830 final 

2005/0238 (COD) 

COMMISSION OPINION 

pursuant to Article 251(2), third subparagraph, point (c) of the EC Treaty 
on the European Parliament's amendments 
to the Council Common Position regarding the 
proposal for a 

DIRECTIVE OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL 

on port State control (recast) 

AMENDING THE PROPOSAL OF THE COMMISSION pursuant to Article 250 (2) of the 
EC Treaty 

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2005/0238 (COD) 

COMMISSION OPINION 

pursuant to Article 251(2), third subparagraph, point (c) of the EC Treaty 
on the European Parliament's amendments 
to the Council Common Position regarding the 
proposal for a 

DIRECTIVE OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL 

on port State control (recast) 

(Text with EEA relevance) 

1. 

INTRODUCTION 

Article 251(2), third subparagraph, point (c) of the EC Treaty provides that the Commission is 
to  deliver  an  opinion  on  the  amendments  proposed  by  the  European  Parliament  at  second 
reading.  The  Commission  sets  out  its  opinion  below  on  the  34  amendments  proposed  by 
Parliament.  

2. 

BACKGROUND 

Date of transmission of the proposal to the European Parliament and to 
the Council 

Date of the opinion of the European Economic and Social Committee 

Date of the opinion of the Committee of the Regions: 

Date of the opinion of the European Parliament, first reading 

Date of adoption of the common position (with Malta abstaining) 

Date of the opinion of the European Parliament, second reading  

9.1.2006

13.9.2006

15.6.2006

25.4.2007

6.6.2008

24.9.2008

3. 

PURPOSE OF THE 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.  

It has a twofold objective: the first is to produce a consolidated version of the Directive in the 
form of a single text to make it more legible and coherent. 

The second is to carry out a thorough reform of the existing system by replacing the present 
regime  based  on  a  quantitative  threshold  under  which  25%  of  ships  are  inspected  by  each 
Member  State  by  a  collective  objective,  which  is  to  inspect  all  ships  calling  at  ports  in  the 

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Union, with high-risk ships being inspected more frequently. The most dangerous ships will 
therefore  be  inspected  every  six  months,  while  high-standard  ships  will  be  inspected  less 
frequently.  

The proposal to recast the Directive on port State control takes due account of the conclusions 
of  the  temporary  committee  set  up  by  the  European  Parliament  following  the  incident 
involving  the  Prestige  (the  MARE  Committee).  In  particular,  it  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.  

4. 

THE COMMISSION'S OPINION ON THE EUROPEAN PARLIAMENT'S AMENDMENTS 

4.1.  Amendments accepted by the Commission 

4.1.1.  Amendments accepted in full 

The Commission can accept amendments 1, 3, 5, 6, 7, 12, 14, 16, 26, 30, 32, 36, 38, 39, 40, 42, 
44, 45 and 51. 

4.1.2.  Amendments accepted in part 

The general objectives of amendment 15, which specifies the scope of the Directive as regards 
anchorages,  can  be  accepted.  However,  some  parts  cannot  be  accepted  in  their  present 
wording, in particular the provisions concerning the arrangements for a derogation from the 
Directive  for  landlocked  States,  which  cannot  be  left  to  committee  procedure  but  should  be 
spelt out in the operative part as they are an essential part of the instrument. 

On  the  flexibility  which  Member  States  are  allowed  as  regards  their  inspection  obligations, 
amendments  19,  22  and  24  contain  useful  details  which  the  Commission  can  accept. 
However, the total lack of flexibility as regards the operation of the inspection system cannot 
be accepted. A degree of flexibility is essential in order to take account of operational realities 
and to ensure that the inspections to be carried out are equitably divided among the Member 
States so as to achieve the collective objective of 100% inspection. 

As regards the refusal of access to Member States' ports, amendment 31 applies the rules on 
banning in the same way to ships flying the flag of a blacklisted State and ships which are on 
the  grey  list  as  defined  by  the  Paris  Moll,  thereby  following  the  Commission’s  initial 
proposal.  However,  the  Commission  has  accepted  the  Council  common  position  which 
provides for a less severe regime for ships on the grey list. 

Amendment  28,  which  provides  for  recourse  to  be  had  to  committee  procedure  to  define 
certain  criteria  regarding  the  risk  profile  of  a  ship,  can  be  accepted,  except  certain  points 
which are already covered by the procedure. 

Amendments  25  and  50  concerning  the  requirement  for  ships  subject  to  an  expanded 
inspection  to  notify  their  arrival  in  port  can  be  accepted,  except  the  excessive  and  pointless 
requirement  of  providing  information  about  all  ports  previously  visited  by  the  ship. 
Amendment 4 deletes a recital introduced by the Council concerning the transmission of this 

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information by the port authorities to the port State control inspectors, provided the authorities 
have  sufficient  resources  available.  The  deletion  of  this  reservation  can  be  accepted  but  the 
rest of the recital can be kept. 

Amendment  33,  which  can  be  accepted  in  principle,  calls  on  the  competent  authorities  to 
make  a  prior  assessment  of  complaints  received.  However,  the  additional  requirement  that 
reasons  must  be  given  for  the  complaint  and  that  it  must  be  specific  are  an  excessive 
restriction of the right to complain.  

The aims of amendment 43 concerning the Commission’s assessment of the application of the 
Directive can be accepted. However, a period of 18 months for the Commission to assess the 
application  of  the  Directive  is  manifestly  insufficient.  The  bulk  of  the  work  will  consist  of 
examining in detail the impact of these mechanisms on the collective objective of inspecting 
all  ships  calling  at  Community  ports.  The  inspection  data  will  need  to  be  collected  and 
analysed over a representative period of time. A minimum period of 36 months is required to 
complete such an assessment. 

Amendments 2 and 17 take over points contained in the proposal for a Directive on the civil 
liability of shipowners, an integral part of the Third Maritime Safety Package, which has not 
yet  been  the  subject  of  agreement  within  the  Council.  The  Commission  can  accept  this. 
However, these amendments also contain new points regarding full compensation for losses, 
according  to  the  ‘polluter  pays  principle’,  which  cannot  be  included  in  their  present  form. 
Furthermore, the Commission notes the political agreement on the proposal for a Directive on 
the  financial  securities  of  shipowners  for  maritime  claims  reached  by  the  Council  on 
9 October 2008. 

4.1.3.  Amendments accepted in principle and/or subject to rewording 

The definitions of what constitutes a complaint (amendment 11) and an inspections database 
(amendment 13) can be accepted, subject to editorial improvement. 

Amendments 27 and 49, which describe the factors that make up a risk profile and the scope 
of enhanced inspections, are acceptable but should be reworded (‘shall’ should be replaced by 
‘are’: this is not an obligation but a simple factual description). 

Amendment 34, which requires inspectors to inform the port authorities if a ship is detained, 
is acceptable in principle, but should be reworded so as to form part of a more comprehensive 
framework for cooperation between the port State control authorities and the port authorities. 

The  Commission  supports  the  aim  of  amendment  35,  which  promotes  cooperation  between 
Member States regarding appeals against decisions to detain ships or refuse them access, but 
considers that it would be sufficient to refer to this aim in a recital. 

Amendment  41,  which  concerns  the  transmission  of  information  about  the  arrival  and 
departure  of  ships  to  the  inspection  database,  can  be  accepted,  but  the  period  allowed  for 
transmitting the information is far too short. 

4.2. 

Amendments not accepted by the Commission 

Amendment 8: the Commission has accepted the common position which retains the concept 
of an inspection system rather than an inspection regime. 

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Amendment 9, which introduces the definition of a port, cannot be accepted: the definition is 
unhelpful and unsuitable as it also includes the onshore part of a port.  

Amendments  10  and  23  take  away  the  flexibility  which  Member  States  are  allowed  with 
regard to not carrying out inspections at night. The Commission cannot accept this. Flexibility 
is  needed  because  of  issues  relating  to  feasibility  and  the  security  of  staff  during  night 
inspections.  

Amendment 18, which would include all the stops ships make at anchorages in the basis for 
calculating  the  number  of  inspections  to  be  carried  out  by  each  Member  State,  is  not 
acceptable  as  it  would  impose  an  excessive  burden  of  compulsory  inspections  on  Member 
States. 

Amendments 20 and 21, which delete the compensation mechanisms which were introduced 
in the common position to restore balance between the volume of inspections carried out in 
Member States, cannot be accepted as they would increase the present imbalances within the 
Community. Without such a mechanism, some Member States would find themselves facing a 
very  heavy  inspection  burden,  whilst  others,  because  of  the  characteristics  of  the  shipping 
traffic, would find it difficult to meet their inspection quota. 

Amendment 37 requires ships which cannot have faults rectified in the port of inspection to 
sail  directly  to  the  nearest  port  of  repair,  i.e.  without  calling  at  any  other  port.  This 
requirement is excessive and could give rise to problems of safety, e.g. if an intermediate stop 
is essential to unload a hazardous cargo on board a ship 

Amendment 46 makes it possible for a low-risk ship to be inspected every 30 months instead 
of every 36 months. This amendment departs from the Commission’s objective, which is to 
reward ships of a high standard by reducing the burden of inspections on low-risk ships. 

The Commission does not accept amendments 47 and 48, which provide for the compulsory 
inspection of ships which have failed to notify their arrival in port and ships which have not 
had  all  their  faults  rectified.  This  would  considerably  increase  the  number  of  compulsory 
inspections  to  be  carried  out  by  the  competent  authorities,  which  would  be  difficult  to 
manage. 

5. 

CONCLUSION 

Under  Article  250(2)  of  the  EC  Treaty,  the  Commission  is  amending  its  proposal  in 
accordance with the above. 

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