Amended proposal for a COUNCIL DECISION concerning the accession of the European Union to the Protocol of 2002 to the Athens Convention Relating to the Carriage of Passengers and their Luggage by Sea, 1974
Date: 2010-11-30
Institutions: European Commission
Subjects: European Union, accession to an agreement, carriage of passengers, jurisdiction, liability, maritime transport, protocol to an agreement, transport safety

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EUROPEAN COMMISSION 

Brussels, 30.11.2010 
COM(2010) 686 final 

2003/0132 (NLE) 

Amended proposal for a 

COUNCIL DECISION 

concerning the accession of the European Union to the Protocol of 2002 to the Athens 
Convention Relating to the Carriage of Passengers and their Luggage by Sea, 1974 

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EXPLANATORY MEMORANDUM 

1. 

Objective of the original proposal 

The proposal for the Council Decision - COM (2003) 375 - AVC/2003/0132 - was presented 
by the Commission on 24 June 2003. 

The  Protocol  of  2002  to  the  Athens  Convention  relating  to  the  Carriage  of  Passengers  and 
their  Luggage  by  Sea  1974  (hereafter  "the  Athens  Protocol")  adopted  under  the  auspices  of 
the  International  Maritime  Organization  ("hereafter  IMO")  is  a  mixed  agreement.  The  main 
objective of the Commission proposal was that the Community should become a Contracting 
Party to the Athens Protocol and that the Member States should do likewise before the end of 
2005. 

2. 

Stage of procedures 

Negotiations  on  this  proposal  within  the  Council  started  but  were  suspended  in  December 
2003 because of a dispute between the Kingdom of Spain and the United Kingdom relating to 
the  Gibraltar  authorities  in  the  context  of  mixed  agreements.  This  dispute  was  solved  in 
December 2007 and the negotiations on this proposal are to resume. 

The competent Council working party worked upon a text before negotiations were suspended 
(Council document 15836.03). This amended proposal builds upon this text. 

3. 

Objective of the amended proposal 

Since  the  presentation  of  the  proposal  (June  2003)  and  the  moment  when  the  negotiations 
were  suspended  (December  2003)  until  today,  the  context  has  substantially  changed.  The 
amended proposal takes into account these changes as follows: 

–  In 2003, the Community had exclusive competence to accede to the Athens Protocol as far 
as  its  Article  10  and  11  were  concerned.  These  provisions  regulate  matters  which  affect 
rules of the Union as laid down in Council Regulation (EC) No 44/2001 of 22 December 
2000  on  jurisdiction  and  the  recognition  and  enforcement  of  judgments  in  civil  and 
commercial matters (hereinafter "the Brussels Regulation")1. The Brussels Regulation was 
based on Title IV of the EC Treaty. The proposal for the Council Decision was therefore 
based  on  Article  65  in  conjunction  with  Article  300(2),  first  subparagraph  and  Article 
300(3),  second  subparagraph  of  the  EC  Treaty.  In  November  2005,  the  Commission 
presented a complementary proposal for an EP and Council Regulation incorporating most 
of the other substantive provisions of the Athens Protocol into EC law (COM(2005)592), 
based on Article 80(2) of the EC Treaty. The adoption of Regulation (EC) No 392/2009 of 
the European Parliament and of the Council of 23 April 2009 on the liability of carriers of 
passengers  by  sea  in  the  event  of  accidents2  (hereinafter  'the  Athens  Regulation')  entails 
that the Union now has exclusive competence to accede to the Athens Protocol as far as the 
matters covered by the Athens Regulation are concerned. The principal component of the 
Athens  Protocol  concerns  maritime  transport  whilst  the  jurisdictional  rules  are  to  be 
regarded as an ancillary component. Having regard to the fact that on 1st December 2009 the 

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OJ  L  12,  16.1.2001,  p.l.  The  Brussels  Regulation  is  binding  upon  all  EU  Member  States,  with  the 
exception of Denmark. 
OJ L 131, 28.5.2009, p. 24. 

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Treaty of Lisbon amending the Treaty on European Union and the Treaty establishing the 
European  Community3  entered  into  force,  therefore,  the  legal  basis  for  the  Council 
Decision  should  be  changed  into  Article  100(2)  in  conjunction  with  Article  218  of  the 
Treaty on the Functioning of the European Union (hereinafter "the TFEU"). 

–  The Athens Regulation does not incorporate all the provisions of the Athens Protocol. The 
Athens  Protocol  remains  a  mixed  agreement  where  individual  Member  States  are  still 
required  to  become  contracting  parties  to  it.  It  is  indeed  most  desirable  to  avoid  that  the 
dates of entry into force of the Athens Protocol differ in each Member State. To that end, 
Member  States  and  the  Union  should  deposit  their  instruments  of  accession  (or  of 
ratification  for  those  who  already  signed  the  Athens  Protocol)  on  the  same  day.  This 
corresponds  to  the  solution  found  with  a  recent  comparable  Council  Decision4.  The 
proposed Council Decision has been amended along this line. 

–  In  October  2006,  the  Legal  Committee  of  the  IMO  adopted  guidelines  for  the 
implementation  of  the  Athens  Protocol,  recommending  a  reservation  for  terrorist  related 
damages, in order to take into account the current state of the insurance market. Member 
States have politically committed themselves to make this reservation. With the adoption 
of the Athens Regulation, the IMO Guidelines fall within the exclusive competence of the 
Union. The Union will therefore make the reservation when acceding to the Protocol and 
this has to be provided for in the Council Decision. 

At the latest stages of the discussions within the Council on the proposed Athens Regulation 
(November 2007), some delegations questioned the functioning of the disconnection clause of 
Article 11 of the Athens Protocol and insisted that the legislation of the Union should clarify 
this.  This  was  eventually  not  included  in  the  political  agreement.  It  is  suggested  adding  a 
declaration on the disconnection clause to the Council Decision. 

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OJ C 306, 17.12.2007 
Decision 2008/431/EC of 5 June 2008 authorizing certain Member States to ratify, or accede to, in the 
interest  of  the  European  Community,  the  1996  Hague  Convention  on  Jurisdiction,  Applicable  Law, 
Recognition, Enforcement and Cooperation in respect of Parental Responsibility and Measures for the 
Protection of Children and authorizing certain Member States to make a declaration on the application 
of the relevant internal rules of Community law, OJ L 151, 11.6.2008, p. 36 

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2003/0132 (NLE) 

Amended proposal for a 

COUNCIL DECISION 

concerning the accession of the European Union to the Protocol of 2002 to the Athens 
Convention Relating to the Carriage of Passengers and their Luggage by Sea, 1974 

THE COUNCIL OF THE EUROPEAN UNION, 

Having  regard  to  the  Treaty  on  the  Functioning  on  the  European  Union,  and  in  particular 
Article 100(2) and Article 218 thereof 

Having regard to the proposal from the Commission, 

Having regard to the assent of the European Parliament, 

(1) 

(2) 

(3) 

The Protocol of 2002 to the Athens Convention Relating to the Carriage of Passengers 
and  their  Luggage  by  Sea,  1974,  (the  "Athens  Protocol")  represents  a  major 
improvement to the regime relating to the liability of carriers and the compensation of 
passengers carried by sea. In particular, it provides for a strict liability for the carrier 
and includes compulsory insurance with a right of direct action against insurers up to 
specified limits. The Protocol is therefore in accordance with the Union's objective of 
improving the legal regime relating to carriers' liability. 

The  Athens  Protocol  modifies  the  Athens  Convention  Relating  to  the  Carriage  of 
Passengers and their Luggage by Sea, 1974, and establishes in Article 15 that the two 
instruments  shall,  as  between  the  Parties  to  the  Athens  Protocol,  be  read  and 
interpreted together as one single instrument. 

The majority of the rules of the Athens Protocol have been incorporated into the law of 
the  Union  by  Regulation  (EC)  No  392/2009  of  the  European  Parliament  and  of  the 
Council of 23 April 2009 on the liability of carriers of passengers by sea in the event 
of accidents5. Thus the Union exerted competence as regards these matters. Member 
States  retain  their  competence  regarding  a  number  of  provisions  of  the  Athens 
Protocol, such as the opt out clause whereby they are allowed to fix limits of liability 
higher  than  those  prescribed  under  the  Athens  Protocol.  The  latter  matters  are 
interdependent with the matters falling under the competence of the Union, and taking 
into  account  the  duty  of  cooperation,  the  Member  States  should  act  in  a  coordinated 
way also in those matters. 

(4) 

Articles  10  and  11  of  the  Athens  Protocol  regulate  matters  which  affect  rules  of  the 
Union as laid down in Council Regulation (EC) No 44/2001 of 22 December 2000 on 
jurisdiction and the recognition and enforcement of judgments in civil and commercial 

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OJ L 131, 28.5.2009, p. 24. 

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(5) 

(6) 

(7) 

(8) 

matters6. The Union thus has also exclusive competence as regards Articles 10 and 11 
of the Athens Protocol. 

Upon  the  accession  of  the  European  Union  to  the  Athens  Protocol,  the  rules  on 
jurisdiction set out in its Article 10 take precedence over the relevant internal rules of 
the Union. The rules on recognition and enforcement of judgments in place between 
Member  States  and  between  Member  States  and  the  Parties  to  the  1988  Lugano 
Convention on jurisdiction and the recognition and enforcement of judgments in civil 
and  commercial  matters,  or  to  any  Convention  replacing  it,  should  take  precedence 
over  those  provided  in  Article  11,  since  the  effect  of  the  former  is  to  ensure  that 
judgments are recognised and enforced at least to the same extent as under the rules of 
the Athens Protocol. 

The  Athens  Protocol  is  open  for  ratification,  acceptance,  approval  or  accession  by 
States and by Regional Economic Integration Organisations which are constituted by 
sovereign States that have transferred competence over certain matters governed by the 
Protocol to those Organisations. 

According  to  Article  17(2)(b)  and  Article  19  of  the  Athens  Protocol,  Regional 
Economic Integration Organisations may conclude the Protocol. 

The  Legal  Committee  of  the  International  Maritime  Organization  adopted  in  October 
2006  Reservation  and  Guidelines  for  Implementation  of  the  Athens  Protocol 
(hereinafter referred to as "IMO Guidelines") to address some issues within the Athens 
Protocol, in particular, compensation for terrorism related damages. 

(9) 

Regulation (EC) No  392/2009  reproduces in its annexes the consolidated version of 
the Athens Convention as amended by the Protocol and the IMO Guidelines. 

(10)  Under the terms of Article 19 of the Athens Protocol, a Regional Economic Integration 
Organisation must declare at the time of signature, ratification, acceptance, approval or 
accession  the  extent  of  its  competence  in  respect  of  the  matters  governed  by  the 
Protocol. 

(11)  The Union, in consequence, should accede to the Athens Protocol. 

(12)  The  Member  States  which  are  to  ratify  or  accede  to  the  Convention  should  do  so 
simultaneously.  The  Member  States  should  therefore  exchange  information  on  the 
state of their ratification or accession procedures in order to prepare the simultaneous 
deposit of their instruments of ratification or accession, 

HAS ADOPTED THIS DECISION:  

Article 1 

The  accession  of  the  European  Union  to  the  Protocol  of  2002  to  the  Athens  Convention 
relating  to  the  Carriage  of  Passengers  and  their  Luggage  by  Sea,  1974,  (the  "Athens 
Protocol") is hereby approved on behalf of the European Union. 

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OJ L 12, 16.1.2001, p.l.  

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Article 2 

1. 

2. 

The President of the Council is hereby authorized to designate the person or persons 
empowered  to  accede  to  the  Athens  Protocol  in  accordance  with  Articles  17(2)(c) 
17(3) and 19 of that Protocol. 

At  the  time  of  accession,  the  Union  shall  make  the  following  declaration  of 
competence: 

"1.  Article  19  of  the  Athens  Protocol  of  2002  provides  that  Regional  Economic 
Integration Organizations which are constituted by sovereign States and which have 
competence over certain matters governed by this Protocol may sign it on condition 
that they make the declaration referred to in that Article. The Union has decided to 
conclude the Protocol and is accordingly making that declaration. 

2.  The  current  Members  of  the  European  Union  are  the  Kingdom  of  Belgium,  the 
Republic  of  Bulgaria,  the  Czech  Republic,  the  Kingdom  of  Denmark,  the  Federal 
Republic  of  Germany,  the  Republic  of  Estonia,  Ireland,  the  Hellenic  Republic,  the 
Kingdom  of  Spain,  the  French  Republic,  the  Italian  Republic,  the  Republic  of 
Cyprus,  the  Republic  of  Latvia,  the  Republic  of  Lithuania,  the  Grand  Duchy  of 
Luxembourg,  the  Republic  of  Hungary,  the  Republic  of  Malta,  the  Kingdom  of  the 
Netherlands,  the  Republic  of  Austria,  the  Republic  of  Poland,  the  Portuguese 
Republic,  Romania,  the  Republic  of  Slovenia,  the  Slovak  Republic,  the  Republic  of 
Finland, the Kingdom of Sweden, the United Kingdom of Great Britain and Northern 
Ireland. 

3.  This  declaration  is  not  applicable  in  the  case  of  the  territories  of  the  Member 
States in which the Treaty on the Functioning of the European Union (TFEU) does 
not apply and is without prejudice to such acts or positions as may be adopted under 
the  Protocol  by  the  Member  States  concerned  on  behalf  of  and  in  the  interests  of 
those territories. 

4.  The  Member  States  of  the  European  Union  have  conferred  competences  to  the 
Union as regards matters covered by Article 100 of the TFEU: Articles 1 and 1 bis, 
Article 2(2), Articles 3 to 16 and 18, 20 and 21 of the Athens Convention as amended 
by  the  Athens  Protocol  and  the  provisions  of  the  IMO  Guidelines.  The  Union 
exercised  this  competence  by  the  adoption  of  Regulation  (EC)  No  392/2009  of  the 
European Parliament and of the Council of 23 April 2009 on the liability of carriers 
of passengers by sea in the event of accidents. 

5. The Member States of the European Union, with the exception of the Kingdom of 
Denmark,  in  accordance  with  Articles  1  and  2  of  the  Protocol  on  the  position  of 
Denmark  annexed  to  the  Treaty  on  European  Union  and  to  the  TFEU,  have 
conferred  competences  to  the  Union  in  particular  as  regards  matters  covered  by 
Article  81  of  the  TFEU.  The  Union  exercised  this  competence  by  the  adoption  of 
Council Regulation (EC) No 44/2001 of 22 December 2000 on jurisdiction and the 
recognition and enforcement of judgments in civil and commercial matters. 

6.  The  exercise  of  competence  which  the  Member  States  have  transferred  to  the 
Union pursuant to the TFEU is, by its nature, liable to continuous development. In 
the  framework  of  the  Treaty,  the  competent  institutions  may  take  decisions  which 
determine the extent of the competence of the European Union. The European Union 

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therefore  reserves  the  right  to  amend  the  present  declaration  accordingly,  without 
this  constituting  a  prerequisite  for  the  exercise  of  its  competence  with  regard  to 
matters governed by the Protocol. " 

3. 

At the time of conclusion, the Union shall make the following declaration ad Article 
11(3) of the Protocol: 

"Judgments on matters covered by the Athens Protocol, when given by a court of a 
Member State or of  a  Contracting Party to the 1988 Lugano  Convention  or  to any 
Convention replacing it on the same matter, continue to be recognized and enforced 
in another Member State in accordance with the relevant internal rules of the Union 
on  the  subject,  including  when  applicable  the  Agreement  between  the  European 
Community  and  the  Kingdom  of  Denmark  on  jurisdiction  and  the  recognition  and 
enforcement  of  judgments  in  civil  and  commercial  matters  and  the  1988  Lugano 
Convention or to any Convention replacing it on the same matter. Article 11 of the 
Athens  Protocol  therefore  only  applies  to  the  recognition  and  enforcement  of 
judgments  given  in  Contracting  States  other  than  Member  States  of  the  European 
Union, Switzerland, Norway, and Iceland." 

4. 

The  person  or  persons  designated  as  under  paragraph  1  shall  make  the  reservation 
contained in the IMO Guidelines when depositing the instrument of accession of the 
Union to the Athens Protocol. 

Article 3 

The Union and the Member States shall deposit their instruments of accession to the Athens 
Protocol or of ratification for those who already signed it on 31 December 2011. 

Done at Brussels, 

For the Council 
The President 

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