Common Position (EC) No 30/2008 of 9 December 2008 adopted by the Council, acting in accordance with the procedure referred to in Article 251 of the Treaty establishing the European Community, with a view to the adoption of a Directive of the European Parliament and of the Council on compliance with flag State requirements (Text with EEA relevance)
Date: 2008-12-19
Institutions: Council of the European Union
Subjects: EU Member State, International Maritime Organisation, environmental liability, international standard, law of the sea, marine pollution, maritime safety, polluter pays principle, ship's flag, transport safety

30.12.2008

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COMMON POSITION (EC) No 30/2008

adopted by the Council on 9 December 2008

with a view to the adoption of Directive 2008/…/EC of the European Parliament and of the Council
of … on compliance with flag State requirements

(Text with EEA relevance)

(2008/C 330 E/03)

THE EUROPEAN PARLIAMENT AND THE COUNCIL OF THE
EUROPEAN UNION,

maritime safety and to contribute to preventing pollution
by ships.

Having regard to the Treaty establishing the European Com-
munity, and in particular Article 80(2) thereof,

(6)

Having regard to the proposal from the Commission,

Having regard to the opinion of the European Economic and
Social Committee (1),

Having regard to the opinion of
Regions (2),

the Committee of

the

Acting in accordance with the procedure
Article 251 of the Treaty (3),

laid down in

(7)

Whereas:

(1)

(2)

(3)

(4)

(5)

The safety of Community shipping and of citizens using
the environment should be
it and the protection of
ensured at all times.

In respect of
international shipping a comprehensive
framework enhancing maritime safety and the protection
of the environment with regard to pollution from ships
has been set up through the adoption of a number of
conventions for which the International Maritime Organi-
sation (hereinafter ‘IMO’) is the depository.

the Sea, 1982 (UNCLOS) and of

Under the provisions of the United Nations Convention
on the Law of
the
conventions for which IMO is the depository (hereinafter
‘IMO Conventions’), the States which are party to those
instruments are responsible for promulgating laws and
regulations and for taking all other steps which may be
necessary to give those instruments full and complete
effect so as to ensure that, from the point of view of
safety of life at sea and protection of the marine environ-
ment, a ship is fit for the service for which it is intended
and is manned with competent maritime personnel.

Due account has to be taken of the Maritime Labour
Convention, adopted by the International Labour Organi-
flag
sation (ILO)
State-related obligations.

in 2006, which also addresses

On 9 October 2008, the Member States adopted a state-
ment in which they unanimously recognised the impor-
tance of the application of the international conventions
related to flag States obligations in order to improve

(1) OJ C 318, 23.12.2006, p. 195.
(2) OJ C 229, 22.9.2006, p. 38.
(3) Opinion of the European Parliament of 29 March 2007 (OJ C 27 E,
31.1.2008, p. 140), Council Common Position of 9 December 2008
and Position of the European Parliament of … (not yet published in the
Official Journal).

Implementation of the procedures recommended by the
IMO in MSC/Circ.1140/MEPC/Circ.424 of 20 December
2004 on the transfer of ships between States should
strengthen the provisions of the IMO Conventions and
Community maritime safety legislation relating to a
change of flag and should increase transparency in the
relationship between flag States, in the interests of mari-
time safety.

The availability of information on ships flying the flag
of a Member State, as well as on ships which have left a
register of a Member State, should improve the transpar-
the performance of a high-quality fleet and
ency of
contribute to better monitoring of
flag State obli-
gations and to ensuring a level playing field between
administrations.

In order to help Member States in further improving
their performance as flag States, they should have their
administration audited on a regular basis.

A quality certification of administrative procedures in
accordance with the standards of the International Orga-
nisation for Standardisation (ISO) or equivalent standards
should further ensure a level playing field between
administrations.

The measures necessary for the implementation of this
Directive should be adopted in accordance with Council
Decision 1999/468/EC of 28 June 1999 laying down the
procedures for
implementing powers
the exercise of
conferred on the Commission (4).

Since the objectives of this Directive, namely the intro-
duction and implementation of appropriate measures in
the field of maritime transport policy, cannot be suffi-
ciently achieved by the Member States and can therefore,
by reason of its scale and effects, be better achieved at
Community level, the Community may adopt measures,
in accordance with the principle of subsidiarity as set out
in Article 5 of the Treaty. In accordance with the prin-
ciple of proportionality, as set out in that Article, this
Directive does not go beyond what is necessary in order
to achieve those objectives,

(8)

(9)

(10)

(11)

(4) OJ L 184, 17.7.1999, p. 23.

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HAVE ADOPTED THIS DIRECTIVE:

Article 4

Article 1

Subject-matter

1.

The purpose of this Directive is:

(a) to ensure that Member States effectively and consistently

discharge their obligations as flag States; and

(b) to enhance safety and prevent pollution from ships flying

the flag of a Member State.

2.
This Directive is without prejudice to Community mari-
time legislation, as listed in Article 2(2) of Regulation (EC)
No 2099/2002 of the European Parliament and of the Council
of 5 November 2002 establishing a Committee on Safe Seas
and the Prevention of Pollution from Ships (COSS) (1), and to
Council Directive 1999/63/EC of 21 June 1999 concerning the
Agreement on the organisation of working time of seafarers
concluded by the European Community Shipowners' Associa-
tion (ECSA) and the Federation of Transport Workers' Unions in
the European Union (FST) (2).

Article 2

Scope

This Directive shall apply to the administration of the State
whose flag the ship is flying.

Article 3

Definitions

For the purposes of this Directive, the following definitions shall
apply:

(a) ‘ship’ means a ship or craft flying the flag of a Member
State falling within the scope of the relevant IMO Conven-
tions, and for which a certificate is required;

(b) ‘administration’ means the competent authorities of

the

Member State whose flag the ship is flying;

(c) ‘recognised organisation’ means an organisation recognised
in accordance with Regulation (EC) No …/2009 of
the
European Parliament and of the Council of … on common
rules
ship inspection and survey
organisations (3);

and standards

for

Conditions for allowing a ship to operate upon granting
the right to fly the flag of a Member State

Prior

to allowing a ship to operate, which has been
1.
granted the right to fly its flag, the Member State concerned
shall take the measures it deems appropriate to ensure that the
ship in question complies with the applicable international rules
and regulations. In particular, it shall verify the safety records of
the ship by all reasonable means. It shall, if necessary, consult
with the losing flag State in order to establish whether any
outstanding deficiencies or safety issues identified by the latter
remain unresolved.

flag

another

2. Whenever
information
concerning a ship which was previously flying the flag of a
Member State, that Member State shall promptly provide details
of outstanding deficiencies and any other relevant safety-related
information to the requesting flag State.

requests

State

Article 5

Detention of a ship flying the flag of a Member State

When the administration is informed that a ship flying the flag
of the Member State concerned has been detained by a port
State, it shall, according to the procedures it has established to
this effect, oversee the ship being brought into compliance with
the relevant IMO Conventions.

Article 6

Accompanying measures

Member States shall ensure that at least the following informa-
tion concerning ships flying their flag is kept and remains
readily accessible for the purposes of this Directive:

(a) particulars of the ship (name, IMO number, etc.);

(b) dates of surveys,

including additional and supplementary

surveys, if any, and audits;

(d) ‘certificates’ means statutory certificates issued in respect of

(c) identification of the recognised organisations involved in the

the relevant IMO Conventions;

certification and classification of the ship;

(e) ‘IMO audit’ means an audit conducted in accordance
with the provisions of Resolution A.974(24) adopted by the
IMO Assembly on 1 December 2005.

(d) identification of

authority which has
competent
inspected the ship under port State control provisions and
the dates of the inspections;

the

(1) OJ L 324, 29.11.2002, p. 1.
(2) OJ L 167, 2.7.1999, p. 33.
(3) OJ L …

(e) outcome of the port State control inspections (deficiencies:

yes or no; detentions: yes or no);

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(f) information on marine casualties;

(g) identification of ships which have ceased to fly the flag of
the Member State concerned during the previous 12 months.

Article 7

Flag State auditing process

shall

take the necessary measures

Member States
for an
IMO audit of their administration at least once every seven
years, subject to a positive reply of the IMO to a timely request
of the Member State concerned, and shall publish the outcome
of the audit in accordance with relevant national legislation on
confidentiality.

This Article shall expire at the latest on … (*), or at an earlier
date, as established by the Commission in accordance with the
regulatory procedure referred to in Article 10(2), if a mandatory
IMO Member State Audit Scheme has entered into force.

Article 8

Quality management system and internal evaluation

By … (**), each Member State shall develop,

1.
implement
and maintain a quality management system for the operational
parts of the flag State-related activities of its administration.
Such quality management system shall be certified in accord-
ance with the applicable international quality standards.

2. Member States which appear on the black list or which
appear, for two consecutive years, on the grey list as published
in the most recent annual report of the Paris Memorandum of
Understanding on Port State Control (hereinafter ‘Paris MOU’)
shall provide the Commission with a report on their flag State
performance no later than four months after the publication of
the Paris MOU report.

The report shall identify and analyse the main reasons for the
lack of compliance that led to the detentions and deficiencies
resulting in black or grey status.

Article 9

Reports

Article 10

Committee procedure

1.
The Commission shall be assisted by the Committee on
Safe Seas and the Prevention of Pollution from Ships (COSS)
established by Article 3 of Regulation (EC) No 2099/2002.

2. Where reference is made to this paragraph, Articles 5
and 7 of Decision 1999/468/EC shall apply, having regard to
the provisions of Article 8 thereof.

The period laid down in Article 5(6) of Decision 1999/468/EC
shall be set at two months.

Article 11

Transposition

1. Member States shall bring into force the laws, regulations
and administrative provisions necessary to comply with this
Directive by … (***) at the latest. They shall forthwith inform
the Commission thereof.

When Member States adopt these measures, they shall contain a
reference to this Directive or shall be accompanied by such a
reference on the occasion of
their official publication. The
methods of making such reference shall be laid down by
Member States.

2. Member States shall communicate to the Commission the
text of the main provisions of national law which they adopt in
the field covered by this Directive.

Article 12

Entry into force

This Directive shall enter
following that of its publication in the Official
European Union.

into force on the twentieth day
Journal of the

Article 13

Addressees

This Directive is addressed to the Member States.

Every five years, and for the first time by … (**), the Commis-
sion shall present a report to the European Parliament and to
the Council on the application of this Directive.

This report shall contain an assessment of the performance of
the Member States as flag States.

Done at …

For the European Parliament

The President

…

For the Council

The President

…

(*) Eight years after the date of entry into force of this Directive.
(**) Three years after the date of entry into force of this Directive.

(***) 24 months after the date of entry into force of this Directive.

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STATEMENT OF THE COUNCIL'S REASONS

I. INTRODUCTION

The Commission presented the proposal for a Directive of the European Parliament and of the Council
on compliance with flag State requirements on 24 February 2006 (1) as one of the proposals of the
third maritime safety package.

On 29 March 2007, the European Parliament voted its opinion at 1st reading (2).

On 9 October 2008, the Council reached a political agreement on the draft Directive. Following
legal/linguistic revision, the Council adopted its Common Position on 9 December 2008 in accordance
with Article 251 of the Treaty.

In carrying out its work, the Council took account of the opinions of the Economic and Social
Committee (3) and of the Committee of Regions (4).

II. ANALYSIS OF THE COMMON POSITION

General

The proposal for a Directive on compliance with flag State requirements forms part of the third mari-
time safety package presented by the Commission end of 2005. The main objective of this proposal is
to ensure that Member States effectively comply with their obligations as flag States before and after
granting flag rights with a view to enhancing maritime safety and to preventing pollution from ships.

Although the Council agrees with the Commission as regards the objective of the proposal, the Council's
approach involved major adaptations of the original proposal. A number of the proposed provisions
were not acceptable for the Council as they duplicate existing Community legislation and provisions
included in other proposals of the third maritime safety package. The proposed provisions rendering the
ratification of IMO conventions mandatory were not acceptable for Member States, particularly for
constitutional reasons. Therefore, the Council's Common Position focuses in particular on the require-
ment for Member States to submit their maritime administration to the IMO auditing process. In addi-
tion, Member States shall ensure the quality certification of their administrative procedures in accordance
with ISO standards or equivalent international standards. Furthermore the Common Position establishes
obligations to be complied with by Member States prior to allowing a ship to operate under their flags
and in case of a detention of a ship flying the flag of a Member State by a port state.

Resulting from this approach, the Common Position modifies, to a large extent, the original Commission
proposal by redrafting it and deleting several parts of the text. This implies that all amendments intro-
duced in the European Parliament's first-reading opinion related to these deleted parts were not accepted
by the Council.

In parallel to the Common Position, a declaration of the representatives of the Governments of the
Member States of the European Union (5) confirms their commitment to do the utmost with a view to
ensuring a rapid and effective application of the international conventions on maritime safety, the
IMO rules related to flag State obligations and the IMO audit.

Key policy issues

i) Flag State auditing process

The Council follows the proposal by the Commission to introduce an independent audit of Member
States' maritime administration. It considers, however, that it should be avoided to create in the Com-
munity framework a parallel auditing system to the one established at international level through the
Voluntary IMO Member State Audit Scheme. With a view to harmonising the auditing procedures and

(1) Doc. 6843/06.
(2) Doc. 7805/07 CODEC 277 MAR 20 ENV 171.
(3) CESE 1177/2006 of 13.9.2006 (OJ C 318 of 23.12.2006, p. 195).
(4) CdR 43/2006 of 15.6.2006 (OJ C 229 of 22.9.2006, p. 38).
(5) Doc. 15859/08 ADD 1.

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ensuring a level playing field, the Common Position therefore provides for an obligation to request regu-
larly an IMO auditing of the administration and to publish the outcome of the audit. The interval for
the renewal of the auditing is set at seven years, taking into account the available resources at IMO level.
The Common Position, furthermore, ensures that once the IMO Audit Scheme becomes mandatory, the
relevant provision of the Directive expires, either automatically eight years after the entry into force of
the Directive or earlier, if needed, upon decision of the Commission in accordance with comitology
rules (regulatory procedure).

ii) Quality management system

The Council supports the Commission's proposal to ensure that maritime administrations of Member
States meet quality criteria related to the management of their tasks. In its Common Position, the
Council, however, takes into consideration the specific situation of the different services concerned and
leaves it up to the Member States to determine the international standards that are applicable for the
certification of the different parts of their administration.

In addition, following the objective of enhancing the flag State performance of Member States, the
Council provides for a mandatory reporting on the performance to the Commission by Member States
that are on the black list or, for two consecutive years, on the grey list of flag States established by the
Paris MOU. By means of such a report the main reasons for the lack of compliance by the Member State
concerned with its flag State requirements shall be identified.

iii) Other flag State requirements

In addition to the above mentioned two main issues, the Council further simplified the Commission's
proposal regarding measures to be taken before granting the right to fly the flag of a Member State and
in the case of the detention of a ship flying the flag of a Member State by a port State. In this respect,
the Council deems it appropriate, in the framework of a Directive, that Member States decide which
measures have to be undertaken to ensure that the ship concerned complies or is brought into compli-
ance with the applicable international rules and regulations.

III. CONCLUSION

The Council believes that its Common Position is a tool to ensure high quality regarding the way in
which Member States accomplish their tasks that they incur as flag States.

The Council notes the contacts which have already taken place with the European Parliament on this
proposal in the framework of the negotiations on other proposals of the third maritime safety package.
It looks forward to a quick agreement on the text allowing the adoption of the Directive.