Proposal for a COUNCIL DECISION authorising Member States to sign, ratify or accede to the Cape Town Agreement of 2012 on the Implementation of the provisions of the 1993 Protocol relating to the Torremolinos International Convention for the Safety of Fishing Vessels, 1977
Date: 2013-01-31
Institutions: European Commission
Subjects: EU Member State, fishing vessel, international convention, maritime safety, protocol to an agreement, signature of an agreement

EUROPEAN 
COMMISSION 

Brussels, 31.1.2013  
COM(2013) 38 final 

2013/0020 (NLE) 

Proposal for a 

COUNCIL DECISION 

authorising Member States to sign, ratify or accede to the Cape Town Agreement of 
2012 on the Implementation of the provisions of the 1993 Protocol relating to the 
Torremolinos International Convention for the Safety of Fishing Vessels, 1977 

(Text with EEA relevance) 

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EXPLANATORY MEMORANDUM 

1. 

CONTEXT OF THE PROPOSAL 

1.1. 

Introduction 

The  Torremolinos  International  Convention  for  the  Safety  of  Fishing  Vessels  1977  was 
amended  by  its  1993  Protocol,  which  updated  the  provisions  and  revised  the  obligatory 
application of the main chapters to vessels of 45 metres in length and over, leaving it up to a 
regional  decision  for  an  application  to  vessels  of  24  metres  in  length  and  over.  Neither  the 
original convention nor the 1993 protocol have entered into force, as the necessary minimum 
requirements in terms of ratification were never reached.  

A  Diplomatic  Conference  was  convened  in  Cape  Town,  South  Africa  by  the  International 
Maritime  Organization  (IMO)  between  9-11  October  2012  to  consider  and  adopt  an 
Agreement on the implementation of the Torremolinos Protocol in a major effort on the part 
of the IMO to facilitate the entry into force of the 1993 Protocol.  

The  Diplomatic  Conference  has  resulted  in  the  adoption  of  an  Agreement  amending  the 
Torremolinos  Protocol  of  1993,  entitled  the  "Cape  Town  Agreement  of  2012  on  the 
Implementation  of  the  Provisions  of  the  1993  Protocol  relating  to  the  Torremolinos 
International Convention for the Safety of Fishing Vessels, 1977” (hereinafter referred to as 
“the Agreement”). 

1.2. 

EU competence and ramifications 

In accordance with the rules on external competence as laid down in Article 3 (2) Treaty on 
the  Functioning  of  the  European  Union  (TFEU),  the amendments to  the  1993 Torremolinos 
Protocol come  under exclusive Union competence, as the Protocol has been transposed into 
EU legislation by Council Directive 97/70/EC of 11 December 1997 setting up a harmonised 
safety regime for fishing vessels of 24 metres in length and over1. 

The European Union cannot become a party to the draft Agreement, as the current draft, as 
approved  by  the  International  Maritime  Organisation  (IMO)  Maritime  Safety  Committee, 
does not include a REIO (Regional Economic Integration Organisation) clause. However as 
the  Agreement  concerns  a  matter  of  exclusive  EU  competence,  Member  States  are  not  in  a 
position to decide autonomously on the signature and ratification of the Agreement. They can 
only do it, in the interest of the Union, after authorization by the Council and consent of the 
European Parliament upon a proposal by the Commission.  

1.3. 

Details of the Agreement  

The Agreement foresees the entry into force of the Torremolinos Protocol 12 months after the 
date on which not less than 22 States the aggregate number of whose fishing vessels of 24 m 
in  length  and  over  operating  on  the  high  seas  is  not  less  than  3,600  have  expressed  their 
consent  to  be  bound  by  it.  This  is  a  considerable  reduction  in  the  fishing  vessel  threshold 
relative to the 1993 Protocol, which now has a realistic prospect of being met. 

The Agreement will be open for signature at IMO Headquarters from 11 February 2013 to 10 
February  2014  and  thereafter  remain  open  for  accession.  It  is  expected  that,  as  has  been 
supported by the EU Member States during the negotiations leading to the agreement, the use 
of  the  databases  held  by  the  Food  and  Agriculture  Organisation  (FAO)  will  provide  an 
objective basis for the estimation of the fleets flying the flag of the ratifying parties, and hence 
facilitate the early entry into force of the Agreement. 

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OJ L 34, 9.2.1998, p. 1 

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Scope:  the  Agreement's  provisions  apply  to  new  vessels,  unless  specifically  provided  for 
otherwise.  Certain  flexibilities  have  been  added  through  the  Agreement  to  facilitate  wide 
acceptance.  Administrations  may,  in  accordance  with  a  plan,  progressively  implement  the 
provisions of chapter IX (radiocommunications) over a period of no more than 10 years; and 
the  provisions  of  chapters  VII  (life-saving  appliances  and  arrangements),  VIII  (emergency 
procedures, musters and drills) and X (shipborne navigational equipment and arrangements) 
over a period of no more than five years. 

Exemptions: the Agreement allows an Administration to exempt any vessel entitled to fly its 
flag  from  any  of  the  regulatory  requirements,  if  it  considers  such  application  to  be 
unreasonable and impracticable in view of the type of vessel, the weather conditions and the 
absence of general navigational hazards, under the following conditions: 

(a)  the  vessel  complies  with  safety  requirements  which,  in  the  opinion  of  that 
Administration, are adequate for the service for which it is intended and are such as 
to ensure the overall safety of the vessel and persons on board; 

(b) the vessel is operating solely in: 

(i)  a  common  fishing  zone  established  in  adjoining  marine  areas  under  the 
jurisdiction of neighbouring States which have established that zone, in respect 
of vessels entitled to fly their flags, only to the extent and under the conditions 
that those States agree, in accordance with international law, to establish in this 
regard; or 

(ii) the exclusive economic zone of the State of the flag it is entitled to fly, or, 
if that State has not established such a zone, in an area beyond and adjacent to 
the  territorial  sea  of  that  State  determined  by  that  State  in  accordance  with 
international  law  and  extending  not  more  than  200  nautical  miles  from  the 
baselines from which the breadth of its territorial sea is measured; or 

(iii)  the  exclusive  economic  zone,  a  marine  area  under  the  jurisdiction  of 
another  State,  or  a  common  fishing  zone,  in  accordance  with  an  agreement 
between the States concerned in accordance with international law, only to the 
extent  and  under  the  conditions  that  those  States  agree  to  establish  in  this 
regard; and 

(c)  the  Administration  notifies  the  IMO  Secretary-General  of  the  terms  and 
conditions on which the exemption is granted under this paragraph. 

Surveys and Certificates: the International Fishing Vessel Safety Certificate is amended to 
state  it  is  issued  under  the  provisions  of  the  Cape  Town  Agreement  of  2012  on  the 
Implementation  of  the  Provisions  of  the  Torremolinos  Protocol  of  1993  relating  to  the 
Torremolinos International Convention for the Safety of Fishing Vessels, 1977.  

The Survey regime is amended to reflect the timeframe used for cargo and passenger vessels, 
namely, an annual survey, a compulsory intermediate survey between years two and three and 
a renewal survey after no more than five years. Grace periods following the survey deadline 
are  also  harmonised.  Additionally  within  the  Agreement  there  is  a  provision  for  an 
Administration  to  exempt  a  ship  from  the  annual  survey,  if  its  application  is  deemed  to  be 
unreasonable or impracticable.  

Overall  the  new  survey  regime  is  tighter:  the  annual  and  periodic  surveys  are  more 
comprehensive;  issues  formerly  to  be  checked within  the  discretionary  intermediate  surveys 
are  included  in  the  mandatory  periodic  survey;  additional  surveys  on  repairs  are  no  longer 
discretionary. The new maximum interval of 5, not 4 years for a renewal survey reflects the 

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fact  that  a  5-year  gap  was  already  an  option  under  the  current  regime.  The  grace  periods 
following expiry of a certificate now also reflect the harmonised periods for certificates issued 
to other vessels under SOLAS, with the main grace period being reduced from 5 to 3 months.  

Neither  the  original  Torremolinos  Convention,  the  1993  Protocol  nor  the  2012  Agreement 
exclude the formulation of reservations or declarations by the Parties.  

1.4. 

Implications for Directive 97/70/EC 

Article 3(5) of the Torremolinos Protocol remains unchanged and permits the development of 
regional arrangements thus ensuring the continued implementation of a uniform and coherent 
safety  regime  for  all  fishing  vessels  operating  in  EU  waters.  In  addition,  the  Agreement 
represents  a  minimum  set  of  safety  rules,  thus  allowing  the  EU  to  continue  to  apply  the 
original rules under the Torremolinos Protocol.  

Two issues may require action to safeguard certain current EU norms: firstly, the exclusion of 
the wider general exemptions and the annual survey exemption introduced by the Agreement; 
and secondly, updating the referencing within the Directive and its Annexes. Articles 8 and 9 
of Directive 97/70/EC in conjunction with Article 5 of Regulation (EC) 2099/20022 provide 
that both issues  can be resolved  by amending the Directive in accordance with a  regulatory 
committee procedure with scrutiny.  

Directive  97/70/EC  applies  the  provisions  of  the  Torremolinos  Protocol  not  only  to  EU 
Member State flagged fishing vessels, but also to fishing vessels flying the flag of third states 
operating in the internal waters or territorial seas of a Member State or landing their catch in a 
port  of  a  Member  State  in  accordance  with  the  general  rules  of  international  law.  The 
application  of  the  Torremolinos  Protocol  provisions  to  all  these  groups  of  fishing  vessels 
should  continue.  For  that  reason  the  Commission  considers  that  EU  Member  States,  when 
signing and agreeing to be bound by the Agreement, should issue a declaration to the effect 
that the Torremolinos Protocol provisions will continue to apply to these two groups of third 
country vessels in accordance with Union law as currently in force. 

As  the  requirements  of  the  current  Directive  will  essentially  be  maintained,  the  cost 
implications  for  EU  fishing  vessels  are  negligible.  While  surveys  will  be  more 
comprehensive, they will be carried out over a longer period of time.  

1.5. 

Conclusion 

The  adoption  and  entry  into  force  of  global  safety  rules  for  fishing  vessels  is  a  matter  of 
utmost importance in a sector plagued by a particularly high number of accidents resulting in 
over 24000 fatalities every year3.  

Thanks  to  the  flexibilities  introduced  by  the  Agreement,  the  latter  is  expected  to  be 
instrumental  in  finally  achieving  the  objective  of  the  entry  into  force  of  the  1993 
Torremolinos Protocol. In addition, amendments to the Protocol to update its provisions can 
only  be  made  once  it  enters  into  force.  As  Directive  97/70/EC  makes  reference  to  and 
implements  the  provisions  of  the  1993  Torremolinos  Protocol,  provisions  that  for  the  most 
part  have  not  changed  substantially  in  20  years,  the  entry  into  force  of  the  Agreement  will 
then  allow  updating  amendments  for  a  number  of  requirements  in  the  Protocol  to  be 
introduced within IMO, which can then be implemented through Directive 97/70/EC.  

The Commission considers that the Agreement will thus greatly facilitate the achievement of 
the objectives of the Treaties as enshrined in Directive 97/70/EC. As explained in paragraph 
1.4.3  above,  it  is  however  necessary  to  ensure  that  the  scope  of  the  said  Directive  remains 

2 
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OJ L 324, 29.11.2002, p.1 
ILO (2001) Report on safety and health in the fishing industry  

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unaffected,  by  requiring  the  Member  States  to  issue  appropriate  declarations  when  signing 
and agreeing to be bound by the Agreement.  

2. 

RESULTS OF CONSULTATIONS WITH THE INTERESTED PARTIES AND 
IMPACT ASSESSMENT 

Accession  to  this  Agreement  will  not  result  in  a  change  to  the  technical  requirements  for 
fishing vessels under the current Directive. 

3. 

LEGAL ELEMENTS OF THE PROPOSAL 

Article 1 

This article authorises Member States to be bound by the current Agreement on a subject of 
the exclusive competence of the Union due to the impossibility for the EU to become a party 
of  such  Agreement.  The  Agreement  sets  out  different  options  for  IMO  member  states  to 
express their consent to be bound and the Article reflects the different methods by which EU 
Member States may wish to do so.  

Article 2 

This article requires EU Member States to agree to be bound by the Agreement within a two 
year period from entry into force of this Decision. Early adherence to the Agreement by all 
EU  Member  States  will  allow  the  threshold  concerning  both  the  number  of  IMO  member 
states  and  aggregate  fleet  required  (22  member  states  and  3600  fishing  vessels)  to  be  more 
quickly  attained.  Given  that  the  Agreement  will  promote  an  improvement  in  fishing  vessel 
safety  worldwide,  reducing  disparities  in  safety  levels  and  resulting  potential  competitive 
disadvantages for EU vessels, and facilitating further updates in technical requirements within 
the Agreement, its early entry into force is highly desirable.  

Article 3 

This article sets a clear date for the entry into force of the Council Decision.  

Article 4 

The purpose of the Decision is to authorise the Member States to be bound by the Agreement 
and so the Decision is addressed to them. 

4. 

BUDGETARY IMPLICATION 

None 

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2013/0020 (NLE) 

Proposal for a 

COUNCIL DECISION 

authorising Member States to sign, ratify or accede to the Cape Town Agreement of 
2012 on the Implementation of the provisions of the 1993 Protocol relating to the 
Torremolinos International Convention for the Safety of Fishing Vessels, 1977 

(Text with EEA relevance) 

THE COUNCIL OF THE EUROPEAN UNION, 

Having  regard  to  the  Treaty  on  the  Functioning  of  the  European  Union,  and  in  particular 
Article  100(2)  thereof,  in  conjunction  with  Article  218(5),  218(6)(a)(v)  and  the  first 
subparagraph of Article 218(8) thereof,  

Having regard to the proposal from the European Commission, 
Having regard to the consent of the European Parliament4,  

Whereas: 

(1) 

(2) 

(3) 

(4) 

(5) 

(6) 

Action  by  the  European  Union  in  the  sector  of  maritime  transport  should  aim  to 
improve maritime safety; 

The Torremolinos Protocol relating to the Torremolinos International Convention for 
the  Safety  of  Fishing  Vessels  1977,  hereinafter  referred  to  as  the  'Torremolinos 
Protocol' was adopted on 2 April 1993; 
Council Directive 97/70/EC5 setting up a harmonised safety regime for fishing vessels 
of 24 metres in length and over has laid down safety standards that are based upon the 
Torremolinos  Protocol,  taking  as  far  as  necessary  full  account  of  regional  and  local 
circumstances;  

The  Torremolinos  Protocol  has  not  entered  into  force,  given  that  the  necessary 
minimum requirements in terms of ratification have never been achieved; 

In order to establish by common accord the highest practicable standards for the safety 
of fishing vessels that can be implemented by all the states concerned, and under the 
auspices of the International Maritime Organization (IMO), a draft Agreement, to be 
read  in  conjunction  with  the  Torremolinos  Protocol,  was  finalised  at  a  Diplomatic 
Conference in Cape Town, South Africa held from 9 – 11 October 2012; 

This Agreement, adopted on 11 October 2012, is entitled "the Cape Town Agreement 
of 2012 on the Implementation of the provisions of the Torremolinos Protocol of 1993 
relating to the Torremolinos International Convention for the Safety of Fishing vessels 
1977" (hereinafter called "the Agreement"). The Agreement will be open for signature 
at  IMO  Headquarters  from  11  February  2013  to  10  February  2014  and  thereafter 
remain open for accession; 

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OJ C , , p. . 
OJ L 34, 9.2.1998, p.1 

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(7) 

(8) 

(9) 

(10) 

The  provisions  of  the  Agreement  fall  under  the  exclusive  competence  of  the  Union 
concerning the safety regime of fishing vessels of 24 metres in length and over; 

The European Union cannot become a party to the Agreement, as it does not include a 
REIO (Regional Economic Integration Organisation) clause;  

It is in the interests of maritime safety and fair competition that the Agreement be now 
ratified or acceded to by the European Union Member States, to ensure the entry into 
force of the provisions of the Torremolinos Protocol. Furthermore, the entry into force 
of the Agreement will allow the subsequent updating of a number of provisions in the 
Protocol  through  submissions  to  IMO,  which  have,  since  the  adoption  of  Directive 
97/70/EC, become obsolete; 

In accordance with Article 2(1) TFEU, the Council should therefore authorise Member 
States to sign and ratify the Agreement or to accede to it in the interests of the Union. 
However,  in  order  to  safeguard  the  current  safety  levels  provided  through  Council 
Directive  97/70/EC,  the  Member  States  should,  when  signing  the  Agreement  and 
depositing  their  instruments  of  ratification  or  accession,  issue  a  declaration  to  the 
effect that the exemptions provided by the Agreement within its Regulations 1(6) and 
3(3) in relation to annual surveys and a common fishing zone or exclusive economic 
zone  respectively  shall  be  excluded  from  application,  and  that  third  country  fishing 
vessels of 24 meters in length and over operating in their territorial or internal waters 
or landing catch at their ports will be subject to the safety standards laid down in the 
said directive. 

HAS ADOPTED THIS DECISION:  

Article 1 

Member States are hereby authorised to sign, sign and ratify, or accede to, as appropriate, the 
Cape Town Agreement of 2012 on the Implementation of the provisions of the Torremolinos 
Protocol  of  1993  relating  to  the  Torremolinos  International  Convention  for  the  Safety  of 
Fishing Vessels, 1977. 

Article 2 

Member States shall take the necessary steps to deposit their instruments of ratification of the 
Agreement  or  accession  to  it  with  the  Secretary  General  of  the  International  Maritime 
Organization without delay, and in any case no later than two years from the date of entry into 
force of this Decision. 

When  Member  States  sign,  ratify  or  accede  to  the  Agreement,  they  shall  also  deposit  the 
Declaration set out in the Annex to this Decision. 

This Decision will enter into force on the day following that of its publication in the Official 
Journal of the European Union.  

Article 3 

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This Decision is addressed to the Member States. 

Done at Brussels,  

Article 4 

For the Council 
The President 

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ANNEX  

DECLARATION TO BE DEPOSITED BY THE MEMBER STATES UPON 
SIGNATURE, RATIFICATION OR ACCESSION TO THE CAPE TOWN 
AGREEMENT OF 2012 ON THE IMPLEMENTATION OF THE PROVISIONS OF 
THE TORREMOLINOS PROTOCOL OF 1993 RELATING TO THE 
TORREMOLINOS INTERNATIONAL CONVENTION FOR THE SAFETY OF 
FISHING VESSELS, 1997 

As part of a regional arrangement, authorised under Article 3(5) of the Torremolinos Protocol 
of 1993, [insert name of the Member State contracting party] is bound by relevant European 
Union  (EU)  legislation  (Council  Directive  97/70/EC  of  11  December  1997)  setting  up  a 
harmonised  safety  regime  for  fishing  vessels  of  24  metres  in  length  and  over  and 
consequently will apply the Torremolinos Protocol provisions to those third country flagged 
fishing vessels of 24 metres in length and over that operate in its internal or territorial waters 
or  which  land  catch  in  one  of  its  ports,  in  the  terms  laid  down  by  the  aforementioned  EU 
legislation. 

Under  this  regional  arrangement,  the  exemptions  provided  by  the  Cape  Town  Agreement 
within  its  Regulation  1(6)  in  relation  to  annual  surveys  and  within  its  Regulation  3(3) 
concerning  a  common  fishing  zone  or  exclusive  economic  zone  shall  be  excluded  from 
application. 

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