Commission Opinion pursuant to Article 251(2), third subparagraph, point (c) of the EC Treaty on the European Parliament's amendments to the Council’s Common Position regarding the proposal for a Directive of the European Parliament and of the Council establishing the fundamental principles governing the investigation of accidents in the maritime transport sector amending the proposal of the Commission pursuant to Article 250(2) of the EC Treaty
Date: 2008-11-26
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, 26.11.2008 
COM(2008) 827nal 

2005/0240 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’s Common Position regarding the 
proposal for a  

DIRECTIVE OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL  

establishing the fundamental principles governing the investigation of accidents in the 
maritime transport sector 

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

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COMMISSION OPINION 

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

DIRECTIVE OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL 

establishing the fundamental principles governing the investigation of accidents in the 
maritime transport sector 

(Text with EEA relevance) 

1. 

INTRODUCTION 

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

2. 

BACKGROUND 

Date  of  transmission  of  the  proposal  to  the  European  Parliament  and 
final--C6-0226/2008--
the 
2005/0240(COD)] 

Council 

[(COM 

(2005) 

590 

13 December 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 at first reading 

25 April 2007 

Date of adoption of the common position  

6 June 2008 

Date of the opinion of the European Parliament at second reading  

24 September 2008 

3. 

AIM OF THE PROPOSAL 

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. 

The proposal therefore  obliges  Member States, as flag States,  coastal States or  substantially 
interested States, to conduct investigations into serious or very serious marine casualties.  

In  the  event  of  other  casualties  or  incidents,  the  proposal  makes  it  mandatory  to  hold  an 
examination in order to decide whether an investigation should be conducted.  

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Such investigations, the sole purpose of which is to identify the causes of accidents and the 
measures  to  remedy  them,  and  not  to  attribute  blame,  must  follow  a  methodology  to  be 
adopted through the comitology procedure. 

The  proposal  also  lays  down  that  investigations  must  be  conducted  by  permanent, 
independent  bodies  which  are  provided  with  sufficient  resources  and  with  investigators 
having the requisite prerogatives to perform their task successfully. 

A  lead  investigating  State  must  be  appointed  but  the  investigation  must  be  conducted  in 
cooperation with all the other States concerned, provision being for a permanent cooperation 
framework to be established to that end. Furthermore, this is to be supplemented by an early 
alert  system  and  a  European  database  for  marine  casualties,  which  will  be  managed  by  the 
European Maritime Safety Agency. 

Finally, feedback is guaranteed by the obligation to publish a report presented in accordance 
safety 
with  certain  minimum 
recommendations to be taken into account by the authorities concerned.  

requirements  and,  where  appropriate,  containing 

4. 

OPINION  OF  THE  COMMISSION  ON  THE  AMENDMENTS  BY  THE  EUROPEAN 
PARLIAMENT 

4.1. 

Amendments accepted by the Commission 

The Commission can accept amendments 1, 2, 5, 6 and 16. 

4.2. 

Amendments accepted by the Commission in part 

The Commission can accept amendment 11, but only insofar as it relates to registration and 
control;  the  remainder  of  the  amendment  is  not  acceptable,  however,  in  that  it  concerns 
EMSA’s remit, which is the subject of a specific Regulation.  

Amendment  21  is  also  acceptable  as  regards  the  first  subparagraph  of  Article  8(1)  of  the 
Common Position, but it is not acceptable as regards the second subparagraph, the wording of 
which in the Common Position is clearer on the question of independence than that suggested 
by the amendment. 

Amendment  32  is  acceptable  insofar  as  it  introduces  a  reference  to  the  results  of  the 
investigations  conducted,  but  it  is  not  acceptable  as  regards  EMSA’s  remit,  which  is  the 
subject of a specific Regulation.  

4.3. 

Amendments accepted in principle by the Commission 

Amendment 4 can be accepted, but on condition that it is reformulated in such a manner as to 
specify that it is the relevant lessons which may be drawn from investigations that are to be 
taken into account in a review of the investigation methodology.  

Amendment  15  is  also  acceptable,  but  provided  that  it  is  made  clear  that  only  the  lessons 
which can drawn from the investigations, and not the conclusions of the investigations, may 
be taken into account in the investigation methodology. 

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Amendment  24  is  acceptable  if  it  is  reformulated  in  such  a  manner  as  to  refer  to  the  early 
alerts provided for in Article 16 of the Common Position. 

Amendment 29 is also acceptable if it is reformulated in such a manner as to specify that the 
investigation  report,  including  the  conclusions  and  any  recommendations,  will  be  made 
public, particularly in the maritime sector. 

Amendment 34 is also acceptable provided that it covers the objectives only of the Directive 
and not of the Union. 

4.4. 

Amendments rejected by the Commission 

Amendments 3, 7, 8, 9, 10, 13, 14, 17 and 20 are aimed at reintroducing distress alerts within 
the scope of the Directive and at making investigations mandatory not only for very serious 
casualties  but  also  for  serious  casualties.  These  amendments  substantially  increase  the 
workload of the investigation bodies, which should rather be able to concentrate on casualties 
in respect of which lessons may be drawn with a view to preventing future disasters. 

Amendments  12,  21,  22,  23  and  25  set  out  to  make  a  clear  distinction  between  safety  and 
other  investigations,  particularly  criminal  investigations;  in  so  doing,  they  jeopardise  the 
balance  achieved  through  long  discussions  within  the  Council  between  the  independence  of 
safety investigations and the prerogatives of criminal law judges in many Member States. It is 
not in any case possible, within the context of a ‘first pillar’ directive, to lay down provisions 
which would restrict the prerogatives of a criminal law judge; a clear distinction between the 
two types of investigation is therefore impossible to achieve in the context of the Directive. 

Amendments  18,  19  and  20  introduce  into  the  Directive  an  arrangement  involving  the 
Commission  whereby,  in  the  event  of  a  conflict  between  investigation  bodies,  one 
Member State would be appointed as the lead State for conducting an investigation. While the 
Commission  proposal  aims  to  prevent  parallel  investigations  being  conducted  as  far  as 
possible  (a  point  modified  by  the  Common  Position),  it  would  be  unrealistic  to  set  out  to 
prohibit  them  completely  and  an  arrangement  entrusting  the  Commission  with  the  task  of 
settling  a  dispute  over  such  a  matter  between  Member  States  would  be  very  difficult  to 
implement on a political level. 

Amendments  26  and  27  are  aimed  at  replacing  point  (h)  of  the  Common  Position  with  the 
wording contained in the text proposed by the Commission, which was, however, less clear on 
this point.  

Amendment  28  is  aimed  at  extending  to  serious  casualties  the  instances  in  which  the 
investigative  body  must  produce  a  full  report  whereas  in  some  cases,  if  no  lessons  can  be 
drawn  from  the  investigation,  there  would  be  justification  for  producing  only  a  simplified 
report. 

Amendment 30 aims to enable the Commission to make substantive changes to investigative 
reports, whereas the content of reports must be the responsibility of the investigative bodies 
alone. 

Amendment  31  requires  the  Commission  to  produce  a  report  on  the  implementation  of  the 
Directive every three years, whereas there is no evidence anywhere that such a requirement 
would serve any purpose. 

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Amendment 33 aims to oblige Member States to apply the provisions of the IMO Guidelines 
on fair treatment of seafarers in the event of a maritime accident. Those Guidelines contain 
many provisions concerning the criminal (or civil) procedure; they cannot, therefore, be made 
mandatory in the context of a “first pillar” directive.  

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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