REPORT FROM THE COMMISSION TO THE EUROPEAN PARLIAMENT AND THE COUNCIL Second report assessing the implementation of the Directive on enhancing port security
Date: 2013-11-18
Institutions: European Commission
Subjects: EU control, common ports policy, harbour installation, infringement procedure (EU), port administration, port traffic, security services, transport safety, vessel













EUR-Lex - 52013DC0792 - EN











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52013DC0792

REPORT FROM THE COMMISSION TO THE EUROPEAN PARLIAMENT AND THE COUNCIL Second report assessing the implementation of the Directive on enhancing port security /* COM/2013/0792 final */









REPORT FROM THE COMMISSION TO THE
EUROPEAN PARLIAMENT AND THE COUNCIL
Second report assessing the implementation
of the Directive on enhancing port security
(Text with EEA relevance)
1.           Introduction
The
main objective of Directive 2005/65/EC[1] on enhancing port security (‘the Directive’) was to
complement the measures adopted in 2004 by means of Regulation (EC)
No  725/2004[2] on enhancing ship and port facility security (‘the
Regulation’).
The
scope of application of that Regulation was limited to cover security measures
on board vessels and the immediate interface between vessels and ports. It is
to these obligations, which essentially fall under the ISPS (International Ship
and Port facility Security) Code which Member States have committed as a
priority, before agreeing to implement further obligations as part of the
adoption of the Directive. The Directive complements the mechanism provided for
by establishing a security system for all of the port area, in order to ensure a high and
equal level of security for all European ports[3].
Over 1 200
commercial maritime ports are operated along the 70 000 km of coastline in
the European Union, one of the regions in the world with the largest number of
ports. Around one thousand of these ports (see point 6.1) fall within the scope
of the Directive, i.e all ports housing one or more port facilities which are
the subject of a security plan approved under this Regulation.
The
objective of the Directive is to improve security in areas of ports not covered
by the Regulation and also to ensure that the enhancement of port security can
support the security measures taken under the Regulation. Whilst responsibility
for the implementation of security measures at port facility level essentially
falls to the port operator, the appropriate security measures at port level
are, as a priority, the responsibility of the port authority[4] and those
authorities which are responsible for keeping public order and safety.
Article 19
of the Directive states that the Commission is to assess compliance with the
Directive and the effectiveness of measures taken by 15 December 2008 and every
five years thereafter.
The
first report was adopted on 20 January 2009[5].
This second report on progress made in terms of implementing the Directive
describes the measures which have been taken in order to promote the implementation
of standardised port security measures across the Union, progress made during
the last five-year reference period and the continued problems which have
arisen during the implementation period[6].
The report is based on:
–                        
exchanges of information between
  Member State authorities responsible for maritime security and other
stakeholders;
–                        
the results of port security
inspections carried out by the Commission;
–                        
ongoing dialogue between the
national authorities and the various players from the maritime and port
sectors.
The
report draws attention to various difficulties encountered as regards achieving
the desired outcomes but also in terms of the global impact of the
implementation of the Directive.
2.           Conclusions
of the first report
The
first report stressed the fact that, although the Directive had been adopted at
first reading and approved by a large majority at the European Parliament and
unanimously at the Council, there have been significant delays in terms of
transposing its provisions in the majority of Member States involved. This led
to the opening of infringement proceedings, two of which had resulted in a
judgment finding failure to fulfil obligations[7].
At
the end of this assessment period, the main provisions of the Directive had
finally been transposed into the national law of the vast majority of Member
States. Unfortunately, there continued to be organisational and functional
difficulties in terms of ensuring implementation in practical terms at port
level, since local administrations did not yet have all the resources necessary
in order to ensure the practical implementation of the Directive. The main
difficulty related to defining the port perimeter from a security point
of view.
3.           Support and monitoring
measures since the previous evaluation period
The
delays in preparing and adopting national transposition measures have had a
knock-on effect, in that the relevant authorities at port level were not able
to implement the Directive until the national measures had been finally
approved.
Generally
speaking, Member States correctly transposed the Directive, in other words the
transposition measures were included in laws, regulations and administrative
provisions. However, these provisions have yet to be implemented in practical
terms at local level.
The
Directive – in keeping with the principle of subsidiarity– stipulates that
Member States should themselves establish each port’s boundaries, leaving ports
free to decide whether they should also apply to adjacent areas. Member States
should also ensure that port security assessments and plans are properly drawn
up. However, in 2009, a large number of ports were still unable to meet the
requirements of the Directive.
During
the period 2009-13, the Commission has therefore continued its commitment to
ensuring a more effective implementation of the Directive. The measures taken
by the Commission took the form of initiatives to help Member States and also monitoring activities. These measures have focused on the following main areas:
–                        
a second seminar on the implementation of the
Directive;
–                        
a study on the technical
aspects of port area security (TAPS II) which was assigned to the Joint
Research Centre (JRC – Ispra);
–                        
collating and disseminating
best practice at the MARSEC committee;
–                        
setting up a system of regular
reporting on the performance and implementation of action plans by Member
States in order to ensure the practical implementation of the Directive;
–                        
the performance of
inspections to monitor implementation of the Directive in accordance with
Regulation (EC) No 324/2008[8]
4.           Assisting
the implementation of the Directive
4.1.        Seminar
on 21 October 2010
A
first seminar was organised in September 2006 to allow Member States and the Commission to exchange information on the methods for transposing and implementing
the Directive. Nevertheless, the Member States with the greatest difficulties
wanted to have additional information on the measures and practices already
successfully implemented in certain ports in the European Union.
The
Commission agreed, and so held a second seminar on 21 October 2010, during
which various examples which had helped improve port security standards were
presented.
The
seminar provided a forum for presenting various approaches for defining port
perimeters from a security point of view, depending on the geographical
configuration of port areas and how they intertwine with residential districts and
with industrial and commercial areas. Various solutions were chosen designed to
establish the boundaries of the port area were established, in cases as varied
as an estuary port (Bordeaux), a historic port (Valletta), a port situated in a
very dense urban environment (Salerno) or even in one of the largest ports in
the world (Rotterdam).
The
workshop also provided an opportunity to remind participants of the fundamental
objectives of the Directive and to stress all aspects relating to port security
assessments, which is provides the cornerstone of the implementation of the
Directive. The conclusions of the seminar were then approved by the MARSEC
committee.
4.2.        Study on the technical
aspects of port security (TAPS II)
In
view of the difficulties experienced by some Member States, the Commission
asked the Joint Research Centre (JRC) to carry out a study on the
implementation of the Directive in European ports.
The
study focused on methodologies to help ensure the smooth implementation of the
Directive and on the technical measures to implement it. The objective of the
study was to help establish common criteria for meeting the objectives of the
Directive, by drawing up minimum standards, recommendations and guidelines and
collating best practices. The definition of port perimeters was the
subject of particular attention, given that some Member States experienced
difficulties in defining the Directive’s scope and port security measures in
general or were reluctant to do so. The final report proposed a methodology
with two successive stages of checks, one defining port facilities and
characteristics forming part of the port, and the other identifying, by means
of a risk analysis, the port boundaries so as to establish the most efficient
port security.
Before
distributing the final report of the study to the Commission, the JRC’s
Institute for the Protection and Security of the Citizen organised a meeting
with all stakeholders on 9 and 10 March 2011 in Ispra (Italy), a meeting with
all stakeholders, including 14 representatives from Member States and from
the port industry, in order to present and discuss the study’s preliminary
conclusions and recommendations, thus giving the authors of the study the
opportunity to explain their findings.
On
20 September 2011, the results of the TAPS II study were distributed to
the MARSEC Committee. A number of proposals, particularly those developing a
systemic methodology for conducting a two-stage risk analysis in order to
establish port boundaries, were presented as tools which were particularly
useful and effective for the analytical work carried out prior to the practical
implementation of the Directive[9].

On
24 January 2012, a working document was submitted to the members of the
Committee on the chapter on determining port boundaries. The Member States
generally felt that the approach presented in the study would help resolve
certain difficulties in terms of determining boundaries of the port area.
However, the possibility of mandatory use of such a methodology was
categorically rejected even though – on a case-by-case and non-binding basis –
the conclusions of the TAPS II study could be used for the next five-yearly
review of port security assessments.
5.           Monitoring the
implementation of the Directive
5.1.        Monitoring action plans for completion of the practical
implementation of the Directive
Since
2009, the Commission has had a system for receiving regular information from
Member States on the implementation of the Directive. A sustained dialogue has
been opened with the authorities of the Member States in order to obtain
regular and reliable information on the extent to which assessments have been
carried out and port security plans adopted.
Those
Member States with the greatest delays in terms of meeting their obligations
were asked to submit national action plans with precise time-frames for
conducting assessments and drawing up plans. Regular progress reports have also
been requested in order to verify that commitments will indeed be complied
with.
The
situation has quickly improved for Member States with less than 30 ports. For
this group of Member States, almost all assessments have been carried out and
96 % of port security plans have been established and approved.
However,
change has been much slower in the case of Member States with more than 30
ports. 92 % of assessments have currently been carried out and just over
two-thirds (70 %) of port security plans have been established and
approved. The main countries concerned are the United Kingdom, Spain, Greece and Germany. The lack of willingness on the part of these Member States to show their
commitment to prioritising the implementation of the Directive has prompted the
Commission to open infringement proceedings (see point 5.3.).
5.2.        Inspections carried out by the Commission in order to
monitor the implementation of the Directive
The
procedures for monitoring the implementation of the Directive were carried out
during inspections by the Commission in accordance with Regulation (EC)
No 324/2008.
Since
2009, the working programme for carrying out maritime security inspections has
systematically included a section for verifying that the procedures for monitoring
the implementation of the Directive have been correctly applied.
However,
until 2012, inspections have unfortunately been hindered by delays in practical
implementation in real terms, local administrations having not received the
instructions and resources necessary in order to carry out port security
assessments.
The
inspections carried out since 2012, both by national administrations and in the
form of direct inspections of a sample of ports, have shown that although the
general framework of the implementation of the Directive has now been correctly
applied, there is a large discrepancy between the
objective of improving port security and the still imperfect results which have
actually been reported. Amongst other things, inspectors regularly report that
assessments have not been conducted in keeping with the appropriate procedures,
plans are not consistent with the results of the assessment, port security
officers have not always been appointed, a system for regular monitoring of
port security plans is not properly in place and provisions relating to
training or drills are not always implemented.
5.3.        Infringement
procedures
Although
the Commission has maintained constant dialogue with all Member States in order
to ensure the consistent and coherent implementation of the Directive, it has
had to initiate five infringement proceedings over the period 2009-2013.
Three
of these cases relate to incomplete implementation of the Directive due to
delays in performing assessments and adopting port security plans. The
proceedings in question relate to Greece, Spain and the United Kingdom. The countries involved are now committed to new action plans with a view to
ensuring that assessments and plans are implemented in full by the first
quarter of 2014.
Two
other proceedings relate to the incorrect implementation of the Directive as
revealed during inspections:
–                        
the first relates to the port of Malmö (Sweden), where inspectors found that the eleven port facilities constituting the
port had been identified as separate ports in order to avoid having to
implement the main provisions of the Directive. This case was closed following
a review of the port security assessment which resulted in the establishment of
a single port in Malmö (Malmö Hamn), comprising the eleven port facilities[10].
–                        
The second concerns the
ports of the Land of Mecklenburg-Western Pomerania (Germany), where inspections
revealed that assessments and port security plans had not yet been drawn up and
implemented. Following the sending of a reasoned opinion, the German
authorities have agreed to carry out further security assessments in ports with
several port facilities, in order to prepare port security plans which meet the
requirements of the Directive.
6.           Specific points resulting from the assessments
6.1.        Critical size of the ports subject to the requirements
of the practical implementation of the Directive
During
discussions with stakeholders, the view is often expressed that the Directive
is generally well designed for large ports with high commercial activity but
that implementation is harder for small ports.
It
should be noted that the Directive applies to all ports situated in Member
States housing one or more port facilities covered by a port facility security
plan approved under Regulation (EC) No 725/2004 (Article 2(2)) and
also that Member States are required to ensure that port security measures are
closely coordinated with measures taken in application of the Regulation
(Articles 4 and 7). The Directive stipulates that the Member States should
themselves establish each port’s boundaries and allows them discretion in terms
of deciding whether to apply the Directive to adjacent areas.
Consequently,
in order to ensure the balanced implementation of useful measures in accordance
with the principle of proportionality, the co-legislators have taken the
precaution provided for in Article 2(4) that if the boundaries of a port
facility within the meaning of Regulation (EC) No 725/2004 have been
defined as effectively covering the entire port, the relevant provisions of the
Regulation shall take precedence over the provisions of the Directive.
This
provision has been widely used by Member States in ports with only one port
facility under the Regulation. On the basis of the port security assessment,
the port boundaries have very often (but not always) been defined as being the
same as that of the port facility. Therefore, of the 1 052 ports[11] housing one or
several port facilities covered by a ship security plan approved under the
Regulation, 586 ports have been considered as falling under the provisions of
Article 2(4) of the Directive, i.e. 55 % of ports in the European
Union. This has particularly been the case in Member States with small ports
scattered along coastlines or on islands[12].
6.2.        Awareness of the threat and awareness-raising amongst
players
The
work carried out during assessments makes it possible to identify the assets
and infrastructure which need to be protected against the threats and risks of
intentional illegal action facing port activities. The next phase involves
designing and implementing appropriate measures which can be used to counteract
threats, at each of the three risk levels identified (normal, increased, high),
by means of specific procedures and by using technical equipment tailored to
the needs of ports and which make it possible to provide the right response to
the potential vulnerability of infrastructure.
The
Directive has made it possible to set up port security committees responsible
for providing practical advice (9th recital). In Member States with this type
of structure, this generally consists of local representatives from the bodies
responsible for security (police, coastguards, maritime affairs, customs,
etc.). This provides an appropriate forum for the essential exchange of
information and a forum for the dissemination of knowledge of the threat, thus
promoting awareness amongst all stakeholders.
Increasing
awareness of the protection of ports forms part of general security policy, of
which all staff employed at the port (i.e. staff of port undertakings but also
those employed by external companies involved in port activities) and also the
various users of the port need to be aware. Awareness-raising activities
provide key tools for ensuring effective dissemination and appropriate ways of
raising awareness as regards security measures. It is important that security
measures are seen as a means to encouraging a port’s economic activities and
how to develop these activities.
By
taking better account of requirements as regards staff training and port
security drills[13],
as has been regularly mentioned in inspection reports, the general level of
knowledge required for the protection of ports could be improved.
6.3.        Inspection and supervision of port security plans
In
accordance with Article 13 of the Directive, Member States shall conduct
inspections in a way that enables them to monitor, in an appropriate and
regular manner, port security plans and the implementation of those plans. This
is a crucial issue which is still not performed adequately in all Member
States, due to the delays in transposition, but also due to the discrepancy
between the objectives established and the resources needed to conduct such
checks.
Each
  Member State has developed its own monitoring system depending on its own
internal organisation and the resources available. This monitoring role has
been devolved to either central or local government, or even to multi-purpose
teams combining several administrative bodies (transport, police, customs,
harbour-master offices, etc.). The audits were designed to verify that the
plans complied with the rules, that the reality of security measures matched
the requirements of the plan and that they had been correctly implemented.
These
tasks are carried out in keeping with a work programme which is approved on a
regular basis. If a shortcoming is identified, a proposal is made in order to
rectify the problem. On the basis of the report submitted to the competent
administration, a new or updated port security assessment may be required. One
important subject of concern for the inspectors is to verify the existence of
coordination between the measures taken at port facility level and those
envisaged at port level. The monitoring of corrective measures is done through
random audits.
The
reports, both of national auditors and also of those of Commission inspectors,
serve as a basis for the national authorities to provide advice and assistance
to the competent authorities at the ports, with a view to rectifying the
shortcomings identified. This practice should be encouraged and extended.
However, some Member States have not yet put in place the structures needed in
order to provide this verification of compliance on a regular and appropriate
basis[14].
It is important for the human or financial resources needed for these
monitoring tasks to be put in place as soon as possible. Further attention will
be paid in the future as regards this point; the current systems for monitoring
port security plans still need improvement.
7.           CONCLUSION
The
assessment of the implementation of Directive 2005/65/EC has shown that the
measures needed to implement all provisions of the Directive in full still need
to be improved in most Member States.
However,
experience acquired during the monitoring of the implementation of the
Directive has shown that significant progress has been made. There is no doubt
that the level of security has increased in European ports. The combination of
the implementation of the Regulation and the application of the Directive has
made possible a credible framework for preventing security breaches in ports
and to obtain adequate protection for maritime and port activities. Although it
is difficult to assess the impact of these measures in terms of providing a
deterrent for terrorist acts, port authorities agree that there has been a
major impact in terms of smuggling, theft and malicious acts, which have been
greatly reduced. Furthermore, the introduction of security measures have often
led to a review of the organisation of ports, such as–for example–the movement
and storage of goods, the control of access to different areas of the port or a
definition of restricted areas. These measures have proved to be very important
for making port activities more efficient, in a highly competitive environment.
As
recalled by the Commission in its Communication dated 23 May 2013 (‘Ports:
an engine for growth’)[15],
the European Union is extremely dependent on maritime ports for trade with the
rest of the world and also within its own internal market. The security of
ports and their approaches is therefore essential to ensuring the overall
security of maritime transport. Conditions of port security require a high
level of vigilance on the part of Member States and the preparation of all
those involved in order to ensure high and comparable security for all European
ports. All players involved must therefore continue to work towards the
constant improvement of prevention, protection and response in order to combat
the new threats. To this end, port facility security systems and those of the
port must complement each other fully. Ensuring effective relationships between
the port, its port facilities and the ships which serve them, continues to be a
major challenge for operators and administrations.
In
the coming months, Member States will have to re-examine port security
assessment and plans in accordance with the provisions of Article 10 of
the Directive, which lays down that this review should take place at least once
every five years. The Commission therefore considers that the methodology
developed in the TAPS II study could be useful where necessary, in order to
redefine the perimeter of ports, including the necessity to take due account of
the water side boundaries.
Moreover,
the Commission’s multi-annual inspections work programme will enter a phase of
more detailed examination. For example, the implementation and application of
procedures under the port security plans to be applied to passengers and
vehicles to be loaded on RO-RO vessels (which are, by nature, particularly
vulnerable) will be the subject of further examination. Similarly, in the case
of international maritime transport services, checks will be carried out on
both sides of this route to verify that the Member States concerned are cooperating
in port security assessments.
Finally,
the Commission will continue to work with Member States to improve the
implementation of the Directive, with the common objective of better
safeguarding EU ports for the benefit of all port users, transport users, the
maritime transport economy and society as a whole. It will continue to monitor
the correct application of this Directive and continue to take legal action
where it considers necessary.
[1]               Directive 2005/65/EC of the European Parliament and
of the Council of 26 October 2005 on enhancing port security – OJ L 310,
25.11.2005, p. 2
[2]               Regulation (EC) No 725/2004
of the European Parliament and of the Council of 31 March 2004 on enhancing
ship and port facility security - OJ L 129, 29.4.2004, p. 6
[3]               Since the Directive only
relates to seaports, the obligations do not apply to Austria, the Czech Republic,  Hungary, Luxembourg and Slovakia. Furthermore, the EFTA Surveillance Authority
ensures that Iceland and Norway comply with their obligations under the agreement
on the European Economic Area.
[4]               The port security authority
is appointed by the Member State in accordance with Article 5 of the
Directive.
[5]               COM(2009)2 final
[6]               The implementation of the
Directive has not yet been the subject of an assessment.
[7]               Case C-464/08 Commission v Estonia, 3 September 2009 and Case C-527/08 Commission v United Kingdom, 3 September
2009.
[8]               Commission Regulation (EC) No 324/2008 of 9 April
2008 laying down revised procedures for conducting Commission inspections in
the field of maritime security, OJ L 98,
10.4.2008, p.5.
[9]               During inspections, the
pedagogical benefit and lines of thinking proposed by the TAPS II study were
–repeatedly–discussed.
[10]             A follow-up inspection
verified and confirmed compliance with the Directive in Malmö.
[11]             The difference between this and the figure quoted in
the 2009 report (754 ports) can be explained by the fact that some Member
States had initially not included ports coming under Article 2(4) in their list
of ports affected by the Directive. This was corrected at the Commission’s
request (figures as of 16.9.2013).
[12]             These ports with a single port facility represent a
significant proportion of ports in Finland (65/78, or 83 %), Sweden (131/162, or 81 %), Greece (82/119, or 69 %), the United Kingdom (119/175, or
68 %) and Denmark (51/82, or 62 %).
[13]             On 4 May 2012, following
the production of a practical handbook on port security drills and exercises,
an exercise was conducted in the port of Antwerp (Belgium). The drill was
observed by observers from Member States and the Commission.
[14]             In the context of the
exchange of information, Member States have been asked to provide records of
their programmes. Some have sent precise figures on the recruitment of auditors
and their records relating to the performance of port audits, while others have
not been able to send as accurate information.
[15]             COM(2013)295 final