COMMISSION STAFF WORKING DOCUMENT Simplification of EU Passenger Ship Safety Legislation Accompanying the document Proposal for a Directive of the European Parliament and of the Council amending Directive 2009/45/EC on safety rules and standards for passenger ships Proposal for a Directive of the European Parliament and of the Council amending Council Directive 98/41/EC on the registration of persons sailing on board passenger ships operating to or from ports of the Member States of the Community and amending Directive 2010/65/EU of the European Parliament and of the Council on reporting formalities for ships arriving in and/or departing from ports of the Member States Proposal for a Directive of the European Parliament and of the Council on a system of inspections for the safe operation of ro-ro ferry and high-speed passenger craft in regular service and amending Directive 2009/16/EC of the European Parliament and of the Council on port State control and repealing Council Directive 1999/35/EC
Date: 2016-06-06
Institutions: Directorate-General for Mobility and Transport, European Commission
Subjects: carriage of passengers, data collection, exchange of information, high-speed transport, maritime safety, personal data, ports policy, safety standard, ship's passport, vessel

EN 

   EN 

   EUROPEAN COMMISSION  Brussels, 6.6.2016  SWD(2016) 190 final   COMMISSION STAFF WORKING DOCUMENT Simplification of EU Passenger Ship Safety Legislation Accompanying the document Proposal for a Directive of the European Parliament and of the Council amending Directive 2009/45/EC on safety rules and standards for passenger ships  Proposal for a Directive of the European Parliament and of the Council amending Council Directive 98/41/EC on the registration of persons sailing on board passenger ships operating to or from ports of the Member States of the Community and amending Directive 2010/65/EU of the European Parliament and of the Council on reporting formalities for ships arriving in and/or departing from ports of the Member States  Proposal for a Directive of the European Parliament and of the Council on a system of inspections for the safe operation of ro-ro ferry and high-speed passenger craft in regular service and amending Directive 2009/16/EC of the European Parliament and of the Council on port State control and repealing Council Directive 1999/35/EC     {COM(2016) 369 final} {COM(2016) 370  final} {COM(2016) 371  final} {SWD(2016) 189 final}  
 
 
Table of Contents 

1.  Context .............................................................................................................................. 3 

2.  Background ....................................................................................................................... 3 

3.  Fitness check results ........................................................................................................... 4 

4.  Rationale ........................................................................................................................... 5 

5.  Data collection and stakeholder consultation ...................................................................... 6 

6.  Simplification proposals ..................................................................................................... 7 

6.1.  Directive 2009/45/EC ............................................................................................................. 8 

Clarification of scope: Definitions .................................................................................................. 8 

6.1.1.  Offshore service vessels ................................................................................................. 8 

6.1.2. 

Tenders ........................................................................................................................... 9 

6.1.3. 

Traditional and sailing ships ...................................................................................... 10 

6.1.4. 

Pleasure yachts/crafts .................................................................................................. 11 

6.1.5. 

Equivalent material/aluminium ................................................................................. 12 

Simplification ................................................................................................................................ 14 

6.1.6. 

Sea areas definition and reporting ............................................................................. 14 

6.1.7. 

Notification procedure of exemptions, equivalencies and additional measures ..... 16 

Improve proportionality ................................................................................................................ 17 

6.1.8. 

Ships below 24 m outside scope .................................................................................. 18 

Increase legal clarity ...................................................................................................................... 19 

6.1.9.  Outdated and redundant references .......................................................................... 19 

6.1.10. 

Inconsistent and incorrect provisions ........................................................................ 19 

6.1.11.  Correction of unintended consequences .................................................................... 19 

6.2.  Directive 1999/35/EC ........................................................................................................... 21 

Removing overlaps and closing regulatory gap ............................................................................ 21 

6.2.1. 

Vessels outside the scope of port State control .......................................................... 21 

6.2.2. 

For vessels subject to port State control .................................................................... 23 

Clarification of ambiguous requirements ...................................................................................... 26 

6.2.3. 

Regularity of inspections ............................................................................................. 26 

6.2.4. 

Content of survey during a regular service ............................................................... 27 

Simplification ................................................................................................................................ 28 

6.2.5. 

Concept of host State ................................................................................................... 28 

2 

 
 
 
6.2.6. 

Joint inspections .......................................................................................................... 28 

6.2.7. 

Initial verification ........................................................................................................ 29 

Increase legal clarity ...................................................................................................................... 30 

6.2.8.  Outdated and redundant provisions .......................................................................... 30 

6.2.9. 

Inconsistent and incorrect provisions ........................................................................ 31 

6.3.  Directive 98/41/EC ............................................................................................................... 33 

Clarification of scope: Definitions ................................................................................................ 33 

6.3.1. 

Scope of application: Sea-going vessels ..................................................................... 33 

6.3.2. 

Protected sea areas ...................................................................................................... 34 

6.3.3. 

Threshold of 20 nautical miles .................................................................................... 35 

Increasing effectiveness of search and rescue operations ............................................................. 35 

6.3.4. 

Short voyages: Information on number of persons on board.................................. 36 

6.3.5. 

Long voyages: Passenger and crew lists .................................................................... 39 

6.3.6. 

Nationality .................................................................................................................... 40 

6.3.7. 

Delay in registering passenger and crew lists ........................................................... 41 

Ancillary issues ............................................................................................................................. 42 

6.3.8. 

Personal data retention period and accessibility ...................................................... 42 

6.3.9. 

Responsibilities of passenger registrar ...................................................................... 43 

6.3.10.  Company passenger registration system ................................................................... 44 

Increase legal clarity ...................................................................................................................... 45 

6.3.11.  Outdated references .................................................................................................... 45 

6.3.12. 

Inconsistent provisions ................................................................................................ 45 

7.  Monitoring and evaluation arrangements ......................................................................... 46 

7.1.  Accident statistics ................................................................................................................ 46 

7.2. 

Fleet evolution ...................................................................................................................... 46 

7.3. 

Implementation scoreboard ................................................................................................ 47 

Annex 1: Summary of targeted consultation on the simplification of EU passenger ship safety 
legislation ................................................................................................................................ 48 

Annex 2: Summary of the PSS Expert Group meeting on the simplification of EU passenger ship 
safety legislation ....................................................................................................................... 67 

Annex 3: Summary of the workshop on the simplification of EU passenger ship safety legislation ... 71 

3 

 
 
 
 
 
1. 

Context 

Passenger ships play an important role in the mobility of EU citizens - more than 400 million 
people  pass  every  year  through  EU  ports,  with  120  million  passengers  transported  between 
ports of the same Member State.  

The  EU  passenger  ship  safety  legislation  has  been  put  in  place  over  a  period  of  15  years 
mainly in response to accidents. It addresses several areas of maritime safety laying down (1) 
technical  requirements  for  domestic  passenger  ships  adapting  and  complementing  where 
necessary international standards, (2) special requirements for ro-ro passenger ships (known 
as ro-pax ships), (3) surveys and (4) requirements for counting and registration of persons on 
board to avoid overcrowding and to facilitate search and rescue operations.  

In  2009,  the  Legislator  adopted  the  third  maritime  package  that  aimed  to  improve  the 
effectiveness  of  the  existing  measures  on  maritime  safety;  however,  it  did  not  include 
measures  on  passenger  ship  safety.  The  2011  White  Paper  for  the  future  of  transport1 
recognised the need to modernise the current EU passenger ship safety legislative framework.  

This has led the Commission to undertake a fitness check of the complex regulatory set up of 
the  EU  passenger  ship  safety.  The  fitness  check  was  announced  in  the  Commission  REFIT 
Communication  of  October  20132  and  its  results  were  reported  to  the  European  Parliament 
and the Council on 16 October 20153. 

The three EU Directives that have been chosen for the fitness check and that are targeted in 
this  review  represent  a  set  of  key  safety  standards  and  requirements  for  passenger  ships 
sailing  in  the  EU  waters,  i.e.  Directive  2009/45/EC4,  Directive  1999/35/EC5  and  Directive 
98/41/EC6. Directive 2003/25/EC7 was also part of the fitness check but it is not included in 
this  review  as  a  need  for  further  action  will  be  determined  by  the  results  of  ongoing 
discussions at international level. 

2. 

Background 

The  safety  of  passenger  ships  in  the  EU  is  regulated  at  three  levels:  international,  EU  and 
national. For ships engaged in international voyages (i.e. including between two EU Member 
States),  international  conventions  and  certain  EU  rules  apply.  The  most  safety-relevant 
applicable convention is the International Convention for the Safety of Life At Sea (SOLAS). 
In addition, specific EU rules apply to ro-pax ships and registration of persons on board. 

1 

2  
3  
4  

5  

6  

7  

White  Paper  'Roadmap  to  a  Single  European  Transport  Area  –  Towards  a  competitive  and  resource 
efficient transport system' (COM/2011/0144). 
COM(2013)685. 
COM(2015)508. 
Directive 2009/45/EC of the European Parliament and of the Council of 6 May 2009 on safety rules and 
standards for passenger ships (OJ L 163, 25.6.2009, p. 1). 
Council  Directive  1999/35/EC  of  29  April  1999  on  a  system  of  mandatory  surveys  for  the  safe 
operation of regular ro-ro ferry and high-speed passenger craft services (OJ L 138, 1.6.1999, p. 1). 
Council Directive 98/41/EC of 18 June 1998 on the registration of persons sailing on board passenger 
ships operating to or from ports of the Member States of the Community (OJ L 188, 2.7.1998, p. 35). 
Directive 2003/25/EC of the European Parliament and of the Council on specific stability requirements 
for ro-ro passenger ships (OJ L 123, 17.05.2003, p. 22). 

4 

 
 
                                                            
For  ships  engaged  in  domestic  voyages  (i.e.  between  ports  of  the  same  Member  State),  EU 
and  national  rules  apply.  The  most  extensive  EU  legislative  instrument  is  Directive 
2009/45/EC, regulating ships made of steel or equivalent material and high speed craft. Where 
internationally  agreed  standards.  National 
applicable  and  feasible, 
administrations have  established their  own rules for ships that are currently  not  regulated at 
EU level.  

is  based  on 

it 

In  addition,  Directives  1999/35/EC  and  98/41/EC  provide  for  specific  EU  rules  for 
inspections of vessels and for the registration of persons on board.  

3. 

Fitness check results 

Driven  by  the  Commission's  Regulatory  Fitness  and  Performance  (REFIT)  Programme, 
fitness  check  showed  that  the  key  objectives  of  the  EU  passenger  ship  safety  legislation 
related  to  passenger  safety  and  internal  market  are  being  overall  met  and  remain  highly 
relevant. The EU passenger ship safety legal framework resulted in a common safety level for 
passenger ships within the EU and a level playing field between operators as well as increased 
transfer  of  ships  between  Member  States.  In  addition  to  harmonised  safety  standards,  the 
system of inspections and surveys played a key role in maintaining the required high level of 
safety. 

The fitness check demonstrated that the majority of passengers travel on ships complying with 
common  safety  standards.  Domestic  passenger  ships  governed  by  EU  safety  standards 
account  for  around  30%  in  terms  of  number  of  vessels  engaged  in  domestic  traffic  in  EU 
waters, but more than 60% of total passenger capacity. As evidenced by the accident statistics, 
the existing legislation has achieved a high level of passenger safety. Out of the 408 accidents 
registered as involving domestic passenger ships during the last 4 years, only one has resulted 
in  a  fatality  of  a  passenger.  The  corresponding  risk  per  passenger  hour  is  lower  than  for 
international passenger ships. The EU passenger ship safety legislation also facilitated the free 
movement of ships between EU Member States. The evidence demonstrates that the change 
of flag increased by 400% since 1998. The regulatory cost related to EU safety standards have 
not proved to be substantial in comparison to national standards that would have been needed 
otherwise.  The  estimated  differences  in  regulatory  costs  represent  merely  a  minor  fraction 
compared to the total construction, operation and maintenance costs. 

The fitness check also showed that there is scope for further enhancing the level of safety as 
well  as  the  efficiency  and  proportionality  of  some  of  the  regulatory  requirements.  The 
potential  to  simplify,  clarify  and  repeal  a  number  of  ambiguous,  outdated  or  overlapping 
requirements has been identified in a number of areas. In addition, the fitness check revealed a 
number of issues that unnecessarily reduce the effectiveness of search and rescue operations. 
Based  on  these  results,  a  set  of  recommendations  has  been  drawn  concerning  the 
simplification  of  EU  passenger  ship  safety  regulatory  framework,  support  of  search  and 
rescue operations and further assessment of other safety-related issues. 

5 

 
 
 
4. 

Rationale 

In the spirit of the Commission's REFIT and Better Regulation agenda and as an immediate 
follow-up of the fitness check, the Commission puts forward a set of proposals to bring about 
the identified simplification potential.  

The  objective  of  this  revision  is  to  simplify  and  streamline  the  existing  EU  passenger  ship 
safety  regulatory  framework,  in  order  to  (i)  maintain  EU  rules  where  necessary  and 
proportionate; (ii) ensure their correct implementation; and (iii) eliminate potential overlap of 
obligations  and  inconsistencies  between  related  pieces  of  legislation.  An  overarching 
objective  is  to  provide  for  a  clear,  simple  and  up-to-date  legal  framework  that  is  easier  to 
implement, monitor and enforce, increasing thus the overall safety level. 

More specifically, this initiative aims at: 

  Reducing  complexity  and  administrative  burden,  primarily  stemming 

from 

overlapping inspection regimes; 

  Reducing ambiguity of definitions and requirements, related in particular to the scope 

and application of the harmonised EU standards; 

  Removing disproportionate requirements, particularly for small passenger ships; and 
  Eliminating  double  reporting  requirements  and  outdated  provisions  concerning 

registration of persons on board. 

The simplification potential of this review primarily consists of non-measurable impacts such 
as legal clarity, certainty and simplicity. The main quantifiable element relates to the removal 
of  overlaps  and  inconsistencies  between  specific  surveys  under  Directive  1999/35/EC,  
expanded port State control inspections provided for in Directive 2009/16/EC8 and annual flag 
State surveys  provided for in  Directive 2009/21/EC9  (concerning  international voyages)  and 
Directive 2009/45/EC (concerning domestic voyages). 

The proposed simplification is envisaged not only to close the identified regulatory gap but is 
also  expected  to  further  rationalise  the  inspection  effort  of  national  administrations  and 
maximise the time in which the ship is commercially exploited. The maximum combination 
potential  has  been  estimated  at  ca.  EUR  900.000  per  year  (i.e.  reduction  of  ca.  670  self-
standing surveys under this Directive per year for the entire EU, if the same ships continued in 
service as today), part of which has been already realised in practice by combining the various 
kind of inspections.  

Besides these monetary estimates, there is a significant burden for all the stakeholders related 
to  the  complexity  of  these  inspections,  overlapping  requirements  spread  across  different 
pieces  of  legislation,  expressed  in  different  terms  etc.  This  makes  the  implementation, 
monitoring and enforcement unnecessarily burdensome for all parties involved. 

8  

9  

Directive  2009/16/EC  of  the  European  Parliament  and  of  the  Council  of  23  April  2009  on  port  State 
control (OJ L 131, 28.5.2009, p. 57). 
Directive 2009/21/EC of the European Parliament and of the Council of 23 April 2009 on compliance 
with flag State requirements (OJ L 131, 28.5.2009, p. 132). 

6 

 
 
                                                            
5. 

Data collection and stakeholder consultation 

This review builds primarily on the data collected during the fitness check process as reported 
in the Commission Staff Working Document 'REFIT – Adjusting course: EU Passenger Ship 
Safety Legislation Fitness Check', adopted in 16 October 201510. 

In  addition  to  the  data  and  consultation  carried  out  in  the  framework  of  the  REFIT  fitness 
check, the preparation of this simplification proposal necessitated an input from technical and 
legal  experts  regarding  the  concrete  formulation  of  technical  definitions  and  a  clear  legal 
drafting. This  expertise was gathered internally, in  cooperation with  the European Maritime 
Safety Agency and the Passenger Ship Safety Expert Group. 

Given the technical nature of the envisaged proposals, a targeted consultation has been chosen 
as  the  most  adequate  consultation  tool.  National  experts  have  been  consulted  in  the 
framework of the Passenger Ship Safety Expert Group and the results of this consultation are 
reported  in  Annex  1  and  2.  In  addition,  a  workshop  was  organised  where  all  the  Member 
States  as  well  as  industry  and  passenger  associations  were  invited  to  participate  (results 
reported in Annex 3). 

The  feedback  on  specific  comments  or  concerns  raised  during  the  consultation  process  is 
provided  in  Chapter  6  according  to  the  individual  measures  proposed.  Where  the  Member 
States did not wish to be identified, their responses are referred to in an anonymous form (i.e. 
'a MS'). Despite the overwhelming support of national experts for the simplification measures, 
a number of concerns or comments have been raised with respect to exact wording of some of 
the proposals. All suggestions have been therefore carefully reviewed and proposals amended 
as appropriate.  

Industrial  stakeholders  insisted  that  the  key  principles  of  the  current  legal  framework 
remained unchanged (on issues such as the self-declaration of passenger data) and warned the 
Commission  that  uniform  application  of  some  of  the  technical  standards  will  necessitate 
safety  upgrade  in  some  sectors  (particularly  the  aluminium  fleet  in  France).  The  passenger 
association (represented by SOS Catastrophes) warned against dilution of the existing safety 
level. 

In addition to this Staff Working Document, an implementation plan is also put forward that 
lists  the  actions  needed  to  implement  the  simplification  measures  and  identifies  the  main 
implementation challenges. 

10  

SWD(2015)197. 

7 

 
 
 
 
                                                            
6. 

Simplification proposals 

The purpose of the following chapters is to recall the recommendations of the fitness check, to 
explain the rationale of the proposed solutions from the technical as well as legal perspective 
and to provide feedback on the comments raised during the consultation process. 

Given  the  simplification  nature  of  its  initiative,  no  materially  different  policy  options  have 
been identified besides the baseline scenario described above, i.e. no EU action. The fitness 
check has identified the simplification potential in detail, leaving little or no discretion as to 
what and how should be simplified. It should be also noted that the fitness check identified a 
number  of  other,  substantial  issues  going  beyond  simplification  elements.  These  are  not 
included in this review and necessitate further assessment and consultation with experts. 

To some extent, an alternative instrument of addressing the identified simplification potential 
could be a non-legislative action such as interpretative guidelines or recommendations. Such 
instrument  would  however  address  only  some  of  the  identified  issues  (e.g.  ambiguous 
definitions)  and  would  lead  to  a  situation  where  the  requirements  clearly  identified  as 
disproportionate,  overly  burdensome  or  outdated  start  to  be  legally  enforced.  Some 
stakeholders even pointed out that soft law would add another layer of documentation into the 
already complex legislative framework.  

In  view  of  the  above  and  subject  to  a  legal  analysis,  the  proposals  are  therefore  made  in  a 
form  of  amending  proposals  to  Directives  2009/45/EC  and  98/41/EC.  Concerning  Directive 
1999/35/EC,  in  view  of  clear  and  consistent  legal  drafting  the  most  adequate  legal  solution 
was found  to  be  the proposal for a new Directive replacing the existing one. An alternative 
option of proposing a set of amendments to the current Directive was discarded as the changes 
required were significant in regard to the present format of the Directive. 

For reasons of clarity and to maximise the information value, the proposed amendments are 
presented  Directive  by  Directive  in  this  Chapter.  This  Chapter  is  to  be  read  in  conjunction 
with  the  Explanatory  Memorandum  for  each  proposal  as  it  complements  the  information 
provided  therein.  In  addition,  the  accompanying  implementation  plan  provides  a  list  of 
support actions to facilitate the uptake of the simplified legal framework.  

8 

 
 
 
 
6.1.  Directive 2009/45/EC 

Directive  2009/45/EC  on  safety  rules  and  standards  for  passenger  ships  establishes  a  legal 
framework  laying  down  harmonised  safety  rules  and  standards  for  passenger  ships  made  of 
steel  and  equivalent  material  and  high-speed  passenger  craft  engaged  on  domestic  voyages. 
This Directive incorporates and adapts the provisions of the SOLAS convention establishing 
detailed  technical  requirements  for  vessel  construction,  stability,  fire  safety  and  life-saving 
appliances.  In  addition,  it  includes  specific  access  and  public  information  requirements  for 
persons  with  reduced  mobility  or  disabilities.  The  Directive  distinguishes  between  four 
different  classes  of  passenger  ships  depending  upon  their  navigation  areas,  defined  by 
significant wave heights, distance to a place of refuge and distance to coast. 

Clarification of scope: Definitions 

The  fitness  check  revealed  that  a  number  of  provisions,  definitions  and  requirements  are 
ambiguous to such extent that in certain cases they may hinder an effective implementation of 
the legislation. These relate in particular to the scope and application of the harmonised EU 
standards, i.e. the type of ships covered. 

6.1.1.   Offshore service vessels 

In  recent  years,  the  development  of  offshore  wind  farms  has  created  the  need  to  transport 
workers  by  sea  to  these  installations  either  for  building  them  or  for  maintenance  purposes. 
Most  of  these  ships  operate  domestically.  Some  Member  States  are  of  the  view  that  these 
workers  cannot  be  considered  ordinary  passengers  as  they  are  required  to  pass  mandatory 
safety trainings and/or mandatory medical fitness criteria, while some others consider them as 
passengers. This interpretation issue creates difficulties in the uniform implementation of the 
Directive. 

At international level, the closest personnel category would be “special personnel” defined in 
the IMO Code for Special Purpose Ships (SPS Code). However, in its definition it is indicated 
that a person is to be special personnel if working on-board, e.g. scientists in a laboratory. In 
addition, Chapter I Regulation 1.2.3 of the SPS Code indicates that “The Code is not intended 
for  ships  used  to  transport  and  accommodate  industrial  personnel  that  are  not  working  on 
board.”  To  close  this  gap,  the  IMO  is  currently  working  on  a  Code  for  ships  transporting 
industrial personnel and trying to define an appropriate personnel category. 

In  the  questionnaire  sent  in  2014,  10  Member  States  indicated  that  vessels  operating 
domestically and carrying more than 12 non-crew people on-board (i.e. offshore workers) to 
offshore installations like wind farms were considered as passenger ships under the Directive 
whereas 9 Member States defined those workers as 'special personnel' and apply to them the 
IMO  Code  for  Special  Purpose  Ships  (SPS  Code),  demonstrating  a  non-uniform 
implementation of the Directive.  

Furthermore, considering that the Directive's standards were developed for passengers and not 
for  ships  transporting  trained  personnel  employed  or  engaged  in  business  of  offshore 
installations, this type of ships therefore should not be certified under the Directive. In view of 

9 

 
 
the  fitness  check  recommendations,  it  is  therefore  proposed  to  clarify  in  Article  3(2)  that 
Directive 2009/45/EC does not apply to 

  Ships referred in Regulation 1.2.3 of Chapter I of the Code of Safety for Special 

Purpose Ships, IMO Resolution MSC.266(84) of 13 May 2008, as amended. 

With  this  definition,  Directive  2009/45/EC  will  not  apply  to  ships  intended  to  transport  or 
accommodate industrial personnel that are not working on board. 

Although  it  was  originally  foreseen  to  define  specifically  offshore  service  vessels  as  falling 
outside the Directive's scope, during the consultation several Member States highlighted that 
applying  the  definition  of  the  IMO  OSV  guidelines  may  be  problematic  and  suggested  to 
focus on the SPS Code (DK, FR, ES, PL, UK). An amended Directive should therefore make 
reference  to  the  provisions  of  the  SPS  Code  which  exclude  the  ships  transporting  industrial 
personnel that are not working on board from the application of such requirements.  

Importantly,  this  proposal  avoids  inconsistencies  with  the  international  legal  framework 
where  the  definition  of  industrial  personnel  is  still  being  discussed.  Currently,  only  two 
offshore service vessels have been reported as certified under the Directive by DK and would 
need to be re-certified accordingly. 

6.1.2.   Tenders 

Ship-carried tenders are used to ferry passengers from passenger ships (primarily cruise ships) 
to shore and back. As cruise ships have increased in size, so the capacity of the tenders has 
also  increased;  in  some  cases  to  over  300  passengers.  The  fitness  check  revealed  a  lack  of 
clarity as to whether such vessels should be considered passenger ships in their own right or 
simply equipment on board a cruise ship.  

In principle, tender operation is regulated by the flag State of the cruise vessel or by the state 
in which they operate – unless they operate in the sea areas defined in Article 4 and are made 
of  steel  or  equivalent  material  in  which  case  the  Directive  would  apply.  Nonetheless,  the 
application  of  the  Directive  in  such  instances  could  be  expected  to  have  limited,  if  not 
deterring effect. Furthermore, the IMO has developed and adopted non-mandatory guidelines 
for the construction, outfitting and use of tenders to provide a common standard for their use 
(MSC.1/Circ.1417 on Guidelines for passenger ship tenders).  

These guidelines clearly indicate that ship-carried tenders should not be used for other types 
of services such as coastal sightseeing excursions, which should be undertaken by ships that 
meet  the  requirements  for  passenger  ships  of  the  coastal  State.  It  is  therefore  proposed  to 
clarify  that  tenders  are excluded  from  the  scope  of  Directive  2009/45/EC  and,  based  on  the 
above mentioned IMO guidelines, define: 

  Tenders as ship-carried boats used for transferring more than 12 passengers from 

a stationary passenger ship to shore and back. 

10 

 
 
It  was  originally  envisaged  to  refer  the  IMO  guidelines  in  full,  i.e.  including  the  type  of 
certificate that such tender could carry (i.e. certified either as lifeboats or passenger ships of 
like  size  and  service  to  the  tender).  In  the  consultation,  FR  and  NL  questioned  the  need  to 
include such certification in the definition of tenders, which was accepted. On the other hand, 
the suggestion of one MS to include a maximum distance from the coast that the tender can 
operate  was  not  taken  up  given  that  such  provision  would  increase  the  complexity  of  the 
legislation  in  an  arbitrary  manner.  NO  did  not  see  the  need  for  the  definition  to  include  a 
reference  to  passenger  ships.  As  already  raised  during  the  fitness  check,  IE  opposed  the 
proposed  clarification  altogether.  No  tender  has  been  reported  as  being  certified  under  the 
Directive. 

6.1.3.   Traditional and sailing ships 

In  Article  3(2a)v (i.e.  ships  outside  its  scope), Directive  2009/45/EC  excludes  'original, and 
individual  replicas  of,  historical  passenger  ships  designed  before  1965,  build  predominantly 
with the original materials'. This group of ships could be categorised as 'traditional ships'. On 
the other hand, Directive 2002/59/EC establishing a Community vessel traffic monitoring and 
information system11 includes a definition of traditional ships as 'all kinds of historical ships 
and  their  replicas  including  those  designed  to  encourage  and  promote  traditional  skills  and 
seamanship,  that  together  serve  as  living  cultural  monuments,  operated  according  to 
traditional principles of seamanship and technique'.  

For the sake of consistency and legal clarity, it is proposed to align these two definitions, i.e. 
to  align  the  definition  of  traditional  ships  in  Directive  2009/45/EC  with  the  corresponding 
definition  in  Directive  2002/59/EC.  In  view  of  the  fitness  check  recommendations,  it  is 
therefore proposed to clarify that Directive 2009/45/EC does not apply to: 

  Traditional  ships,  defined  as  all  kinds  of  historical  passenger  ships  designed 
before  1965  and  their  replicas  built  predominantly  with  the  original  materials, 
including  those  designed  to  encourage  and  promote  traditional  skills  and 
seamanship, that together serve as living cultural monuments, operated according 
to traditional principles of seamanship and technique. 

In the consultation, Member States had slight preference for this wording that retains the age 
and  material  criteria.  To  avoid  any  unintended  impacts  on  the  scope  of  the  Directive,  this 
option is therefore put forward. For example, in the absence of the material criteria, ships built 
from modern materials (albeit operated according to traditional principles of seamanship and 
technique) would be also excluded from the scope of the Directive – which is not the intention 
of the proposed clarification (as pointed out by DK). 

The inclusion in the definition of the traditional seamanship skills and principles recognize the 
specific characteristics of ships which are considered as cultural heritage that do meet some 
special  minimum  safety  standards  but  that  have  not  been  designed  to  meet  the  international 

11  

Directive  2002/59/EC  of  the  European  Parliament  and  of  the  Council  of  27  June  2002  establishing  a 
Community  vessel  traffic  monitoring  and  information  system  and  repealing  Council  Directive 
93/75/EEC (OJ L 208, 5.8.2002, p.10). 

11 

 
 
                                                            
conventions;  such  ships  should  be  used  to  promote  traditional  skills,  seamanship  and 
awareness of the maritime heritage. 

In  addition,  the  practice  has  shown  a  need  to  clarify  the  coverage  of  rig-sailing  passenger 
ships. Although the Directive explicitly excludes passenger ships not propelled by mechanical 
means  from  its  scope  (Article  3(2a)ii),  these  ships  usually  have  an  auxiliary  diesel  engine 
capable  of  propelling  the  ship  if  needed.  In  reality,  a  number  of  relatively  old  rig-sailing 
passenger  ships  had  been  certified  according  to  the  Directive  as  existing  Class  C  and  D 
fulfilling  relevant  national  requirements  instead  of  Chapters  II-1  and  II-2  of  the  Directive. 
Currently, the Directive and SOLAS lack any specific stability requirements  related to these 
ships  when  using  wind  and  sails  as  the  main  propulsion  power.  This  type  of  ships  should 
therefore not be certified under the Directive. In view of the fitness check recommendations, 
it is therefore proposed to clarify that Directive 2009/45/EC does not apply to: 

  Sailing  ships,  defined  as  ships  primarily  propelled  by  sails  even  if  fitted  with 

mechanical propulsion for auxiliary and emergency purpose. 

In the consultation, UK proposed this slightly amended wording which has been accepted. On 
the  other  hand,  the  suggestion  of  IT,  PT  and  one  MS  to  include,  in  addition,  a  maximum 
propulsion  power  has  not  be  taken  up,  given  that  no  need  has  been  identified  for  such  (to 
some  extent  arbitrary)  criterion.  DE,  DK  and  IE  disagreed  with  this  clarification  altogether, 
which is driven by a different interpretation of the Directive's scope. Instead, DK suggested 
defining  a  common  stability  requirements  for  ships  equipped  with  sails,  which  has  been 
discarded as falling outside the remit of this simplification review and the carried out fitness 
check. 

The  proposed  clarification  would  mean  that  the  existing  45-50  rig-sailing  ships  (primarily 
under NL flag) certified under the Directive will have to be certified according to the national 
applicable standards. 

6.1.4.   Pleasure yachts/crafts 

In  Articles  3(2a)vi  and  3(2b)ii  (i.e.  ships  outside  its  scope),  Directive  2009/45/EC  refers  to 
pleasure 'yachts' and pleasure 'craft'. However, it is not entirely clear what these terms stand 
for as neither of them is defined in the Directive. It is therefore proposed to define that for the 
purposes of Directive 2009/45/EC: 

  Pleasure  yacht/craft  means  a  vessel  carrying  no  cargo  and  not  more  than  12 

passengers not engaged in trade, regardless of the means of propulsion. 

The alternative definition of pleasure yacht and craft considered included also the purpose for 
which such yachts/craft are used, i.e. intended for sports and leisure purposes. Although such 
definition  was  more  aligned  with  the  Recreational  Craft  Directive  (albeit  maintaining  the 
SOLAS  reference  to  'pleasure'  yachts),  during  the  consultation  IT  raised  concerns about  the 
unintended consequences of defining the purpose for which these vessels are used. This was 
accepted. 

12 

 
 
In addition, the amended wording specifies that such ships shall carry no cargo and replaces 
the reference 'for commercial purposes' by 'not engaged in trade' to align it with the SOLAS 
definition.  In  case  such  vessel  is  not  propelled  by  mechanical  means  and  carrying  over  12 
passengers, it would still be exempted from the Directive (as commented on by IE). 

6.1.5.   Equivalent material/aluminium 

According  to  Article  3,  Directive  2009/45/EC  does  not  apply  to  'vessels  constructed  in 
material  other  than  steel  or  equivalent'.  Although  the  main  body  of  the  Directive  does  not 
define  what  such  'equivalency'  stands  for,  in  Chapter  II-2  of  Annex  I,  the  Directive  defines 
requirements  for  cases  'where  any  part  of  the  structure is  of  aluminium  alloy,  the  following 
shall  apply'.  Aluminium  is  therefore  the  only  material  that  is  explicitly  mentioned  in  the 
Directive  as  being  equivalent  to  steel.  Furthermore,  given  that  the  Directive  provides  for 
mandatory  requirements  for  ship  structures  built  of  aluminium,  it  is  considered  that  such 
requirements shall be implemented and enforced in all such cases. 

While the large majority of Member States considers ships made of aluminium equivalent to 
steel and consequently within the scope of Directive, other Member States do not apply the 
Directive in the same manner. This leads to an uneven situation where one part of the fleet is 
certified under the Directive while another part of the same fleet is not (albeit a bigger one). 
Around  25  aluminium  built  non-HSC  passenger  ships  above  24  m  in  length  have  been 
certified  according  to  the  Directive,  while  another  ca.  130  have  not.12  Therefore,  clarifying 
that  aluminium  built  ships  fall  under  the  scope  of  Directive  2009/45/EC  and  enforcing  its 
provisions is indispensable to establish a common safety level and a level playing field. 

Table 1: Aluminium built ships certified and non-certified under the Directive  

Aluminium, >24m, 
non-HSC 
Denmark 
Spain 
Ireland 
Italy 
Sweden 
UK 
France 

Under Directive 
2009/45/EC 
1 
5 
3 
5 
8 
3 

Outside Directive 
2009/45/EC 

41  

86 (out of which ca. 60 
are in parts of France to 
which the Treaty 
provisions apply) 
1  
128 

Greece 
Total 
Source: MS 2014/09 FC Questionnaire + MARINFO (EMSA) 

25 

12  

These ships are certified according to national standards. Comparison of these standards can be found in 
the  Commission  Staff  Working  Document  'REFIT  -  Adjusting  course:  EU  Passenger  Ship  Safety 
Legislation Fitness Check', adopted in 16 October 2015 (SWD(2015)197). 

13 

 
 
 
 
 
 
 
 
 
 
                                                            
  
During  the  consultation,  15  Member  States  and  Norway  agreed  that  the  intention  of  the 
Legislator was to apply Directive's standards to aluminium built ships (and one Member State 
had no opinion). Three Member States disagreed (FR, IT and LV). FR argued that aluminium 
passenger  ships  that  are  not  insulated  according  to  the  Directive's  requirements  should  be 
excluded  from  its  scope  and  opposed  to  include  new  aluminium  ships  in  the  scope  of  the 
Directive  before  suitable  technical  requirements have  been  defined  first.  IT  pointed out  that 
there is certain ambiguity as regards some of the technical requirements in the Annex of the 
Directive and LV proposed an alternative wording ('achieves' instead of 'can achieve'). 

It has been acknowledged that the definition of 'equivalency' in Chapter II-2 of Annex I may 
create  ambiguity  as  regards  the  coverage  of  non-insulated  (or  not  sufficiently  insulated) 
aluminium built ships and that there are provisions in the Directive (mirroring SOLAS) that 
require  certain  elements  to  be  built  in  steel,  notably  crowns  and  casings,  without  indicating 
the equivalent material possibility.  

It is therefore proposed to amend the definition of equivalency to clarify that aluminium built 
passenger ships fall in the scope of the Directive and have to be insulated accordingly: 

  Equivalent  material  means  aluminium  alloy  or  any  other  non-combustible 
material, which maintains structural and integrity properties equivalent to steel at 
the  end  of  the  applicable  exposure  to  the  standard  fire  test  due  to  the  insulation 
provided. 

Furthermore, with the assistance of EMSA and national experts, it is envisaged to review the 
Annex  of  the  Directive  and  address  specific  concerns  and  clarifications  related  to  the 
applicability of technical standards to aluminium ships raised by some Member States during 
the consultation, such as: 

  Crowns and casings (IT); 
  Vehicle decks made of aluminium (UK); 
  Complete  insulation  of  the  hull,  superstructures,  structural  bulkheads,  decks  and 

deckhouses (FR); 

  Watertight bulkheads in an aluminium passenger ship. Ch. II-1, table 4.1 and 4.2 
drafted on the basis that the ship is constructed in steel. A-0 appears in numerous 
divisions  and  for  aluminium  divisions  this  requires  SFP  to  be  provided  to  a 
minimum of A-30 standard (IE); 

  Empty spaces should be excluded from the requirement (SE); 
  Stairways and ladders in machinery spaces. 

These clarifications need to be seen and assessed in combination with the exclusion of small 
ships below 24 meters in length from the scope of the Directive (see chapter 6.1.8.). However, 
even with clarifying the corresponding fire insulation requirements, this proposal may imply 

14 

 
 
the  need  to  upgrade  some  fire  safety  elements  in  cases  where  the  national  standards  are 
currently less stringent.13  

For  the  newly  built  ships,  it  is  envisaged  that  the  additional  cost  of  fire  insulation  for 
aluminium built ships would be marginal in comparison to the cost of a new built vessels. The 
situation is different for the existing fleet. During the consultation, FR alerted the Commission 
that the upgrade of existing aluminium vessels to the Directive's requirements is economically 
and technically impossible. Industrial stakeholders (European Boating Industry, ECSA), while 
also  arguing  against  retro-fitting,  pointed  out  to  side  effects  of  additional  insulation  such  as 
higher weight, fuel consumption etc. 

In  general  terms,  the  costs  of  retro-fitting  will  vary  on  a  case  by  case  basis  and  will  be 
determined  by  the  residual  value  of  the  ship  in  the  moment  of  retro-fitting.  The  exclusion 
from the scope of the Directive of ships below 24 m will reduce significantly the number of 
ships which may need to be retrofitted. Furthermore, during the phase-in period some of these 
vessels are likely to be phased out because of their normal life cycle. In any case, sufficient 
transition period will have to be envisaged to smooth the adjustment to the maximum extent 
possible and to plan the technical updates, if any. The longer the transition period, the higher 
likelihood that the existing ships (not certified under the Directive) are not impacted. On the 
other hand, it also takes longer to achieve a common safety level. 

Finally,  it  should  be  also  noted  that  excluding  aluminium  from  the  scope  of  Directive 
2009/45/EC  is  not  considered  a  credible  alternative,  as  it  would  defeat  the  entire  notion  of 
material equivalence described above and the policy objective of achieving a common, high 
safety level for passengers sailing domestically in the EU Member States. 

Simplification 

The fitness check showed that the complexity of the EU passenger ship safety legislation is 
aggravated  by  a  number  of  elements  that  render  its  monitoring,  implementation  and 
enforcement  unnecessarily  difficult.  This  includes  the  complex  definition  of  sea  areas 
(especially  for  Classes  C  and  D)  and  low  speed  and  transparency  of  the  notification 
procedure. 

6.1.6.   Sea areas definition and reporting 

In Article 4, passenger ships are divided into 4 classes according to the sea area in which they 
operate. The definitions of the sea areas C and D are based on three different parameters of 
the  sea  areas  where  they  can  operate,  namely  the  significant  wave  height,  distance  to  coast 
where shipwrecked persons can land and distance to a place of refuge. All these parameters 
mean  that  the  definition  of  the  sea  areas  is  rather  complex,  especially for  Classes  C  and  D. 
Member  States  have  to  calculate  the  significant  wave  height  for  each  sea  area,  then  cross 

13  

For  example,  the  French  national  rules  include  fire-insulation  requirements  in  similar  areas  as  the 
Directive, such as the bulkheads of the engine room, but with less stringent requirements (e.g. A-30 vs 
A-60 in the Directive). 

15 

 
 
                                                            
check with the maximum allowed distance to coast where shipwrecked persons can land and 
finally cross-check again with the distance to a place of refuge.  

The fitness check has demonstrated that the large majority of Member States implement and 
define sea areas on the basis of solely two parameters, namely the distance to coast and the 
significant wave height. Taking into account the objectives of this simplification initiative and 
comments of Member States, the proposed simplification of sea areas definitions is limited to 
the elements that would not significantly influence the current delimitation of sea areas. 

First,  the approach  and requirements  with  respect  to  place of  refuge  as  defined  in Directive 
2002/59/EC (i.e. for the purpose of any ship in a need of assistance) better fits the purpose of 
providing  for  the  place  of  refuge  as  it  is  ship-dependant  and  weather-dependant.  Member 
States  should  have  already  procedures  in  place  to  assess  the  appropriateness  of  a  particular 
coastline as a place of refuge on a case by case basis. In such framework, the notion of place 
of refuge as a static, defining parameter of sea areas was found outdated and inadequate. The 
results of the questionnaire of 2014 also showed that the majority of Member States  do not 
use distance to a place of refuge to define their sea areas. 

Second, the Directive does not include any criteria that would indicate which type of coast is 
appropriate for 'shipwrecked person to land' or even whether a shipwrecked person is referred 
to a person in the water, on a survival craft or on a ship in distress. In fact, this notion was not 
found to be used in practice for defining the sea areas. 

In  view  of  the  fitness  check  recommendations,  it  is  therefore  proposed,  for  the  purposes  of 
defining sea areas in Article 4 of Directive 2009/45/EC, to: 

  Remove the reference to where the shipwrecked persons can land; and 
  Remove the reference to the place of refuge. 

During  the  consultation,  albeit  the  UK  in  principle  disagreed  with  removing  the  notion  of 
'place  of  refuge'  from  the  definition  of  sea  areas,  they  agreed  with  the  rationale  for  its 
removal,  i.e.  that  it  depends  on  the  individual  vessel  and  its  route.  Similarly  for  SE  that 
questioned whether the notion of the place of refuge is to be replaced by another definition. It 
needs  to  be  therefore  clarified  that  the  operational  considerations  in  view  of  the  local 
conditions and the availability of appropriate place of refuge for the given ship type and route 
remain a discretion of Member States. 

PT and NL provided additional comments regarding the need to re-classify sea areas in case 
the criterion of place of refuge is removed. As regards the concerns of PL and DE, it should 
be  clarified  that  the  distance  to  coast  remains  as  a  key  defining  parameter  (besides  the 
significant wave height). One Member State noted that an alternative to sea areas should be 
provided  for  cases  where  sea  areas  cannot  be  determined  due  to  the  complexity  of  the 
procedure. 

In addition, to complete the common sea area maps and to clarify where the sea areas defined 
for  the  purpose  of  the  Directive  end,  it  is  proposed  to  specify  that  Member  States,  when 
defining the list of sea areas, should delimit the inner border of sea area D: 

16 

 
 
  Establish,  and  update  when  necessary,  a  list  of  sea  areas  under  its  jurisdiction, 

delimiting the inner border of sea area D. 

6.1.7.   Notification procedure of exemptions, equivalencies and additional measures 

Directive  2009/45/EC  (and  in  principle  also  Directive  98/41/EC)  defines  a  sui  generis 
notification procedure that is rather lengthy and not necessarily  always followed in practice. 
For example, although Member States are expected to notify draft measures, exemptions are 
often notified after they had been granted. There is no database where such measures (either 
in  their  draft  or  adopted  form)  would  be  recorded  and  made  available  to  all  Member  States 
and operators for their consideration.  

During  the  fitness  check,  the  proposal  has  been  made  to  align  the  specific  notification 
procedures  with  those  found  in  Directive  (EU)  2015/1535  laying  down  a  procedure  for  the 
provision  of  information  in  the  field  of  technical  regulations  and  of  rules  on  Information 
Society  services14  (that  replaced  and  repealed  Directive  98/34/EC)  which  provides  for  a 
notification  procedure  of  technical  regulations  related  to  products  and  information  society 
services.  However,  the  complete  alignment  of  the  two  procedures  has  not  proven  to  be 
feasible in practice, given that Directive (EU) 2015/1535 neither allows for the Commission 
decision  in  case  the  proposed  measures  are  not  justified  (which  preserves  a  common 
implementation and level playing field for economic operators throughout the EU), nor allows 
Member States to adopt the measure in course of the so called 'standstill' period.   

Nonetheless,  on  the  basis  of  the  lessons  learnt  with  the  database  supporting  Directive  (EU) 
2015/1535 (the so called TRIS database) and in order to streamline, facilitate and maximise 
the  added  value  of  existing  reporting  requirements,  it  should  be  possible  to  set  up  and 
maintain  a  database  containing  the  notifications,  additional  information,  Commission 
decisions  and  the  final  adopted  measures.  Besides  increasing  transparency,  such  database 
would also allow for an immediate access to the documents by the Commission, EMSA and 
other  Member  States,  hence  eliminating  unnecessary  delays  related  to  their  submission  and 
circulation. 

An existing platform that could for example perform a function of such database is CIRCA, 
the use of which would allow avoiding additional administrative costs for Member States as 
well as the Commission as the database manager. The decision will however need to be taken 
as  regards  the  accessibility  of  the  notified  information.  In  view  of  the  fitness  check 
recommendations, it is therefore proposed to: 

  Specify that the draft or adopted measures regarding exemptions, equivalencies or 
additional  safety  requirements  shall  be  notified  by  means  of  a  database 
established and maintained by the Commission for such purpose; and 

14  

Directive (EU) 2015/1535 of the European Parliament and of the Council of 9 September 2015 laying 
down a procedure for the provision of information in the field of technical regulations and of rules on 
Information Society services (OJ L 241, 17.9.2015, p. 1). 

17 

 
 
 
 
 
 
                                                            
  Specify  that  conditions  of  access  to  the  database  shall  be  defined  by  means  of  a 

delegated act. 

In the consultation, all Member States and Norway agreed with the proposed simplification of 
the  notification  procedure,  with  the  exception  of  MT,  who  underlined  the  possibility  of 
additional  administrative  burden  (which  would  not  be  the  case,  as  explained  above).  Three 
Member  States  expressed  no  opinion.  In  the  comments,  national  experts  specifically 
highlighted the higher transparency of the proposed measures and easier updates and access. 
DK highlighted that the same principles as the IMO GISIS should be used (to be defined by 
means of a delegated act). 

Improve proportionality 

The limit between small and large ships is set at 24 m in length. This threshold is based on the 
IMO  International  Convention  on  Load  Lines  (ICLL)  and  remains  considered  the  most 
appropriate in defining commonly applicable technical safety standards for passenger ships15. 
The  largest  ships  are  certified  according  to  the  Directive:  92%  of  the  922  passenger  ships 
covered at present by Directive are ships of > 24m length. The maximum length of the ships 
above 24m for the ships certified out of the Directive is around 40 meters. 

Table 2: Size of ships 

No. Ships 
>=24m 

No. ships 
<24m 

% Ships 
>=24m 

% Ships 
<24m 

EU Dir. Certified 

Aluminium16  

Composite  

Wood  

Sub-total of ships out 
of Directive (Al, 
Comp & Wood) 

850 

129 

105 

136 

72 

280 

589 

92% 

8% 

32% 

68% 

15% 

85% 

1014 

12% 

88% 

370 

1883 

16% 

84% 

 Source: MS 2014/09 FC Questionnaire 

15  

16  

With  the  exception  of  France  that  during  the  fitness  check  and  the  targeted  consultation  for  this 
proposal  suggested  replacing  the  limit  of  length  with  the  limit  applicable  to  cargo  vessels,  i.e.  gross 
tonnage (namely 500 GT). 
Includes the ships operating in French Overseas Territories (New Caledonia etc.). 

18 

 
 
 
  
 
 
 
                                                            
6.1.8.   Ships below 24 m outside scope 

Currently, only ships built in steel or equivalent material below 24 m are within the scope of 
the  Directive,  however  a  large  majority  of  such  ships  is  built  in  other  materials  than  steel 
(wood  and  composite  material).  This  reflects  the  fact  that  these  ships  are  more  sensitive  to 
local  operational  conditions.  Member  States  are  therefore  in  a  better  position  to  assess  the 
limitations  of  navigation  for  these  ships  in  terms  of  distance  to  coast  or  port  and  weather 
conditions.  Furthermore,  it  has  proven  increasingly  difficult  to  adapt  the  prescriptive,  one-
size-fits all SOLAS standards for this category of ships at EU level.  

The Directive also gives Member States the flexibility to apply national rules when they find 
the  harmonised  standards  for  small  ships  impracticable  and/or  unreasonable.  For  example, 
while  one Member  State  may  conclude  that a double  bottom  is  necessary,  another  one  may 
conclude  the  contrary.  This  will  depend  on  the  type  of  service  that  the  ship  is  going  to 
provide, in which area and in which time of the year. Member States must therefore develop 
and maintain a number of regulations related to ships of less than 24m. This situation does not 
only create a double layer of legislation for these ships, it also puts into question the need for, 
and value added of, keeping the ships below 24 m in length within the scope of the Directive. 

Furthermore,  the  fitness  check  showed  that  out  of  the  ships  with  less  than  24m  within  the 
scope  of  the  Directive,  only  one  had  changed  flag.  This  means  that  this  category  of  ships 
tends to be currently operated in the same Member State until the end of their operational life.   

The fitness check has identified a mismatch between the existing prescriptive safety standards 
for  small  steel  (or  aluminium)  ships  of  below  24  m  in  length  and  the  identified  safety  and 
internal  market  objectives.  Given  that  such  small  ships  are  in  the  main  built  from  materials 
other  than  steel,  the  vast  majority  of  the  fleet  in  terms  of  numbers  of  ships  is  currently  not 
covered  by  the  harmonised  EU  safety  standards.  On  this  basis,  the  EU  standards  for  small 
ships  (currently  applied  to  ca.  70  ships  out  of  1950  small  ships)  have  been  evaluated  as 
disproportionate. 

It is therefore  proposed to  exclude passenger ships  below 24 m in  length  from the scope of 
Directive 2009/45/EC so it applies to: 

  New and existing passenger ships of 24 meters in length and above. 

The benefits of this measure primarily relate to a simpler, clearer and more proportionate EU 
regulatory  framework.  Given  the  limited  number  of  small  ships  currently  covered  by  the 
Directive,  the  impacts  on  public  authorities  and  operators  are  expected  to  be  marginal.  Re-
certification  under  national  legislation  for  the  ca.  70  small  ships  certified  under  Directive 
2009/45/EC would apply.  

In the consultation, the large majority of Member States and Norway agreed to exclude small 
ships from the scope of the Directive (16 Member States). DE, IE and IT disagreed, albeit IE 
commented that ships would not meet the requirements of their existing legislation (however, 
small  ships  will  anyhow  have  to  be  certified  under  national  applicable  legislation)  and  IT 

19 

 
 
noted  that  they  would  prefer  a  dedicated  Directive  regulating  the  small  ships  (i.e. 
irrespectively of the material they are built from). 

Increase legal clarity 

The review also includes a number of proposals removing outdated, inconsistent or redundant 
references from the Directive. 

6.1.9.   Outdated and redundant references 

  Reference to Directive 96/98/EC replaced by a reference to Directive 2014/90/EC; 
  Reference to Directive 95/21/EC replaced by a reference to Directive 2009/16/EC; 
  Reference to Directive 94/57/EC replaced by a reference to Regulation (EC) 

391/2009; 

  Reference to Decision 1999/468/EC replaced by a reference to Regulation (EU) 

182/2011 where appropriate; 

  Outdated Article 7(2) on ro-pax phased-out (1 October 2015) removed; 
  Outdated Article 8(4)(second paragraph) and Article 8(4) on implementation 

reports (17 May 2006) removed; 

  Redundant part of the reference to ICLL taken out in Article 2(m); 
  Redundant Article 6(1)(c) is deleted {duplicates points (a) and (b)}; 
  Redundant part of the reference to DSC Code taken out in Article 6(4)(a). 

6.1.10.  Inconsistent and incorrect provisions 

  Missing reference to the 2008 Intact Stability Code added in Article 2(b); 
  Incorrect reference to HSC Code in Article 2 (g)(ii) replaced by a correct one 

(Regulation 1.4.38); 

  Incorrect reference to 'passenger' taken out from Article 3(2)(a); 
  Incorrect reference to Annex I took out from Article 9(2); 
  Explicit reference to the requirements of the Directive added in Article 13(a); 
  Missing references to equivalencies and additional safety provisions added in 

Article 13(b). 

6.1.11.  Correction of unintended consequences 

As pointed out by the UK during the consultation process, Article 6(3)(e)  should be read in 
the context of all existing passenger ships, not only to the passenger ones as the heading of 
paragraph 3 currently suggests. This may lead to unintended negative consequences whereby 
converted cargo ships are not considered as new passenger ships (which was certainly not the 
intention  of  the  Legislator).  In  addition,  although  the  main  text  of  the  Directive  refers  to 
repairs, alterations and modifications of major character, the corresponding definition appears 
only in the Annex. It is therefore proposed to: 

  Remove  point  (e)  from  paragraph  3  of  Article  6  and  re-introduce  it  as  a  new 

paragraph 5 of Article 6 under the heading of existing ships; and 

20 

 
 
 
 
  Move  the  definition  of  repairs  from  the  Annex  (Ch.I.9)  to  the  main  text  of  the 

Directive (Article 2, definitions). 

21 

 
 
 
 
 
6.2.  Directive 1999/35/EC 

Directive 1999/35/EC on a system of mandatory surveys for the safe operation of regular ro-
ro  ferry  and  high  speed  passenger  craft  services  foresees  rules  for  safe  operation  of  ro-ro 
ferries and HSC services to  or from of EU ports. It also provides the Member States with a 
right to conduct, participate in or cooperate with any investigation of maritime casualties or 
incidents involving these vessels (which is no longer relevant as it is specifically covered by 
Directive 2009/18/EC on maritime accident investigation17). 

Removing overlaps and closing regulatory gap 

Notwithstanding  the  specificities  of  Directive  1999/35/EC,  the  vast  majority  of  Member 
States  combine  or  replace  some  of  the  inspections  required  under  the  Directive  with  either 
flag State surveys or port State control inspections. This practice renders the implementation 
and enforcement of this Directive problematic, given the different scope of these inspections 
and  regulatory  overlaps.  For  example,  the  legal  framework  allows  for  a  port  State  control 
inspection to be replaced by a Directive 1999/35/EC survey. However, given that the scope of 
1999/35/EC  survey  does  not  include  all  elements  covered  by  the  port  State  control,  this 
overlap can in fact create a regulatory gap. 

In view of the identified potential to remove overlaps and inconsistencies between the surveys 
under Directive 1999/35/EC ('ro-pax' and HSC surveys), port State control inspections (under 
Directive 2009/16/EC) and the flag State surveys (under Directive 2009/45/EC), it is proposed 
to further rationalise the inspection effort of national administrations, to focus the inspection 
effort on the ships being inspected rather than on the Member States and to thereby maximise 
the time in which the ship can be commercially exploited. 

6.2.1.  Vessels outside the scope of port State control 

Vessels not subject to  port State control  include ships trading domestically in  the flag State 
and  ships  trading  between  the  flag  State  and  a  State  outside  the  EU.  These  two  groups  are 
covered by Directive 2009/21/EC and Directive 1999/35/EC (ships of Class A only) and are 
outside the scope of Directive 2009/16/EC because the flag State of the ship is the same as the 
port  State.  Together,  these  vessels  account  for  ca.  40%  of  the  fleet  falling  under  Directive 
1999/35/EC. 

In order to reduce the overlaps identified in the fitness check (primarily between the 'in port' 
and  annual  flag  survey),  it  was  originally  foreseen  to  transfer  the  requirements  provided  in 
Directive 1999/35/EC to Directive 2009/45/EC (this would concern ca. 30% of vessels which 
fall in the scope of Directive 1999/35/EC). Similarly for vessels operating between an EU MS 
and  a  third  country  where  the  flag  of  the  vessel  is  the  same  as  that  of  the  MS,  it  has  been 
considered to transfer such requirements to Directive 2009/21/EC.  

17  

Directive 2009/18/EC of the European Parliament and of the Council of 23 April 2009 establishing the 
fundamental  principles  governing  the  investigation  of  accidents  in  the  maritime  transport  sector  and 
amending Council Directive 1999/35/EC and Directive 2002/59/EC of the European Parliament and of 
the Council (OJ L 131, 28.5.2009, p. 114). This Directive deletes Article 12 of Directive 1999/35/EC on 
accident investigation. 

22 

 
 
                                                            
Such transfers (in combination with the measure below) would allow the repeal of Directive 
1999/35/EC.  However,  in  order  to  preserve  the  current  safety  level,  a  large  amount  of 
provisions  would  have  to  be  transferred  and  duplicated  (as  for  example  noted  in  the 
consultation by IE). In view of clear and simple legal drafting, this was ultimately considered 
undesirable,  particularly  in  view  of  the  limited  simplification  potential  to  be  obtained. 
Therefore, it is proposed to: 

  Retain requirements for the vessels falling outside the scope of port State control in a 
specific, single Directive dedicated to inspections of ro-ro ferry and high-speed craft 
in regular service; and 

  Replace Directive 1999/35/EC with a new Directive.  

Given that the amendments in the wording and editing of the current Directive are numerous 
(although  they  do  not  change  its  substantial  provisions),  replacement  with  a  new  Directive 
was found to be the only viable solution from a perspective of legal clarity and coherence.  

In  the  consultation,  13  MS  and  Norway  agreed  with  the  suggestion  to  transfer  the 
corresponding requirements from Directive 1999/35/EC to Directive 2009/45/EC but only  8 
MS agreed to do so for Directive 2009/21/EC. With respect to vessels operating domestically, 
DK  and  PL  noted  that  the  flexibility  (simplification  potential)  in  carrying  out  annual  Flag 
survey and specific ro-pax survey is limited in those Member States that delegate their annual 
Flag survey to a recognised organisation (which is not possible under Directive 1999/35/EC).  

As concluded in the fitness check, the combination of the above mentioned surveys observed 
in  practice  has  nonetheless  proved  to  be  beneficial  also  in  case  where  MS  delegated  their 
annual flag surveys to a recognised organisation – in such case primarily for the ship operator. 
For example, as Finland noted during the fitness check consultation: "We try to combine these 
surveys  together  with  the  flag  State  /  Recognised  Organisation  surveys.  We  do  not  wish  to 
cause  too  excessive  workload  to  the  ship’s  crew  due  to  inspections."  From  the  operator 
perspective,  the  combination  of  inspections  reduces  the  non-productive  time  for  the  ship, 
whereby  the  ship  does  not  have  to  stop  operations,  prepare  for  and  undergo  2  different 
inspections.  On  average,  this  would  reduce  the  inspection  burden  from  the  ship  perspective 
from 3 to 2 inspections per year. 

The simplification potential for the vessels outside the scope of port State control that could 
be thereby reaped was estimated in the fitness check at 150 self-standing ro-pax inspections 
per  year  on  the  basis  of  2014  data.18  This  means  that  in  principle,  ship  operators  would  be 
subject every year (all things being equal) to 150 inspections less compared to status quo (see 
estimate in Table 3 for Group 2 and 3 vessels). 

18  

For more details, see SWD (2015)197. 

23 

 
 
 
 
 
 
                                                            
Table 3: Example of inspections – year 2014 

Ships 

No of 
ships 

99/35 

2014 surveys 

Expanded 
PSC 

FS 

Max (none 
combined) 

Min (99/35 
and FS 
combined) 

Difference 

Group 2 
and 3 

150 

215 

n.a. 

150 

365 

215 

150 

Source: EMSA on the basis of the THETIS database, Commission, 2015  

This  is  nonetheless  only  an  illustration  of  the  maximum  synergies  that  could  be  possible  to 
reach  and  which  would  be  lower  in  practice  given  that  the  combination  of  two  surveys  is 
unlikely to completely eliminate the cost of one of them (this will depend on a case by case, 
i.e. how exactly the surveys are combined, who carries them out etc.). 

In view of maximising the above illustrated simplification potential to the extent possible and 
without duplicating the current requirements in other legal acts (i.e. Directive 2009/45/EC and 
2009/16/EC), it is therefore proposed to: 

  Clarify that the specific ro-pax inspection may, at the discretion of the Member State, 
be  carried  out  at  the  same  time  as  or  in  conjunction  with  the  annual  flag  State 
survey19. 

6.2.2.  For vessels subject to port State control 

These  ships  are  subject  to  port  State  control  in  accordance  with  Directive  2009/16/EC,  flag 
State  control  and  Directive  1999/35/EC  inspection  regimes.  These  vessels  account  for  ca. 
60% of the fleet falling under Directive 1999/35/EC.  

Unlike  the  flag  State  survey,  port  State  control  has  to  be  carried  out  by  the  administration 
itself  and  cannot  be  delegated  to  a  recognised  organisation.  From  a  perspective  of  national 
administrations,  the  duplication  (and  consequently  the  simplification  potential)  between  the 
specific ro-pax survey and port State control is therefore the biggest. 

In order to prevent unnecessary burden and to avoid overlap, Directive 1999/35/EC provides 
that ro-pax vessels and HSC inspected under this regime should be exempted from expanded 
PSC  inspections.  Although  this  provision  implies  that  a  Directive  1999/35/EC  inspection  is 
equivalent  to  a  PSC  expanded  inspection,  this  is  not  the  case  as  there  is  no  legal  basis  in 
Directive  1999/35/EC  to  inspect  a  ship  for  compliance  with  all  international  Conventions. 
This leads to a paradox where the overlap of the two existing inspection regimes can in fact 
create a regulatory gap20.  

19  
20  

Carried out according to the IMO HSSC Guidelines or procedures designed to achieve the same goal. 
Directive 2009/16/EC includes a similar provision, stipulating that an inspection carried out within the 
Directive  1999/35/EC  regime  can  be  counted  as  a  PSC  inspection  for  the  purposes  of  the  Member 

24 

 
 
 
 
 
                                                            
Furthermore, despite the overlaps between these two instruments, the current legal framework 
leads to situations where the combination of inspections is not always possible. This is mainly 
because the risk parameters in the current PSC system can imply that the ship is not eligible 
for  an  expanded  PSC  inspection  at  the  time  when  the  Directive  1999/35/EC  inspection  is 
scheduled. According to feedback received during the fitness check consultation, DE, EL, FI, 
IE,  IT,  LV  carry  out  ro-pax  and  PSC  inspections  at  the  same  time  while  DK,  MT,  PL,  UK 
replace PSC with ro-pax surveys21.  

In view of removing the inconsistencies and reaping the identified simplification potential, it 
is therefore proposed to: 

  Transfer the requirements of Directive 1999/35/EC to Directive 2009/16/EC, while: 

o  Ensuring that these vessels qualify for a port State control inspection prior to 
commencement  of  a  regular  service  ('pre-commencement'  inspection)  and 
thereafter twice per year; and 

o  Ensuring  that  one  of  the  two  annual  inspections  complies  with  the 

requirements  included in Annex III to Directive 1999/35/EC; and  

o  Ensuring that the other inspection complies with the requirements of Annex IV 
(and elements of Annex I and III) of Directive 1999/35/EC, one part of which 
shall be carried out outside port. 

On  average,  this  would  reduce  the  inspection  burden  from  the  ship  perspective  from  4  to  3 
inspections  per  year.  From  the  perspective  of  national  administrations,  the  reduction  can  be 
even  more  substantial,  given  that  according  to  the  current  requirements,  every  ro-pax 
inspection should be in principle carried out jointly by two (or more) host States22. Although 
the notion of joint inspection is to be retained for this type of vessels (see Chapter 6.2.6.), it 
would no longer be mandatory. 

21  

22  

State's  "inspection  commitment  "  only  if  it  covers  the  items  of  Annex  VII  of  Directive  2009/16/EC, 
which includes pollution prevention (MARPOL) and working and living conditions (MLC). 
In  that  case,  however,  the  ro-pax  surveys  have  to  also  cover  the  international  conventions,  such  as 
MARPOL and MLC, currently not covered in the Directive 1999/35/EC legal base. 
Unless an involved host State agrees to carry out a survey at the request of another involved host State, 
Art. 11(3) of Directive 1999/35/EC. 

25 

 
 
 
 
 
 
 
                                                                                                                                                                                          
Table 4: Example of inspections – year 2014 

Ships 

No of 
ships 

99/35 

2014 surveys 

Expanded 
PSC* 

FS 

Max (none 
combined) 

Min (99/35 
and PSC 
combined) 

Difference 

Group 1 

220 

720 

521 

220 

1461 

940 

521 

Source: EMSA on the basis of the THETIS database, Commission, 2015 (revised according to 
the proposal) 

*Although not identified as such, most of these inspections are likely to be expanded ones because of 
the age profile of the ships and because it is in the interest of the national administrations.  

The  illustrative  estimates  based  on  example  of  data  from  2014  show  that  the  difference 
between  the  minimum  and  maximum  number  of  inspections  was  around  520.  Taking  into 
account the average unit cost of a ro-pax survey estimated at EUR 134023, this amounts to a 
total of approximately EUR 700 000 in monetary terms. Similarly to Table 3, this illustrates 
the maximum synergies that could be, at least theoretically, possible to reach (unless already 
done so). However, in case of the port State control the simplification potential is more likely 
to  be  reached  in  full,  given  that  both  inspections  are  carried  out  by  the  national 
administrations  themselves,  which  gives  them  the  flexibility  to  carry  out  both  at  the  same 
time.  

From  an  operational  perspective,  the  only  change  in  comparison to  status  quo  would  be  for 
ships  that  are  currently  flagged  in  one  of  the  host  States.  For  those  vessels,  the  ro-pax 
inspections can be currently also combined with a flag State survey (similarly as described for 
groups 2 and 3 above)24. In reality, the share of such vessels in this group can range between 
10-50 percent and change from year to year due to flag changes.  

During the fitness check, it was assumed that for the sake of calculation, in case of 100 ro-pax 
inspections  in  2014,  flag  State  is  an  EU  Member  State  and  it  is  one  of  the  host  States,  i.e. 
combination  with  a  Directive  1999/35/EC  survey  is  possible.  This  would  no  longer  be  the 
case under the PSC inspection regime, which is nonetheless considered to be compensated by 
the  possibility  to  count  additional  ca.  200  ro-pax  surveys  into  the  fair  share  of  port  State 
inspections  (depending  on  the  decision  of  a  Member  State  to  carry  them  out  as  expanded 
PSC). 

In  the  consultation,  13  Member  States  and  Norway  agreed  with  the  proposal  while  4  MS 
disagreed (DK, IE, ES and another MS) and 2 MS expressed no opinion (DE and another MS, 

23  

24  

Not differentiating between in port and in service surveys as the difference in cost is limited. See Annex 
6 of SWD(2015)197. 
This is however not the case for non-EU flagged ships, where the flag State survey is carried out by a 
different administration than the one carrying out the ro-pax survey. 

26 

 
 
 
                                                            
albeit  DE  expressed  their  support  at  a  later  stage).  From  those  who  disagreed,  IE  was 
concerned about the treatment of inspection in a port outside the EU (which would remain to 
be  the  case  only  in  the  framework  of  inspections  during  regular  service)  and  about  the 
possibility of joint inspections (flag State could still be present if requested by the company). 
ES  noted  that  altering  the  selection  mechanism  of  the  PSC  Directive  may  create  new 
problems but did not indicate which ones. Another MS insisted that both annual ro-pax survey 
shall  be  conducted  as  expanded  PSC  inspection  (in  the  spirit  of  proportionality  and 
subsidiarity,  this  shall  be  left  to  MS  to  decide.  This  flexibility  also  allows  preserving  the 
requirements of the current Directive 1999/35/EC).  

DK noted that where an EU flag State is currently carrying out the ro-pax surveys on behalf of 
the other host State, this proposal would mean that the inspection burden is shifted from that 
EU flag State to the other host (i.e. port) State. This would indeed be the case. In practice, this 
shouldn’t  be  a  problem  for  the  port  State  in  question  as  if  the  inspection(s)  carried  out  are 
expanded inspections, one or both will count towards the port States' inspection commitment 
under Directive 2009/16/EC.  

It  is  envisaged  that  this  inspection  burden  would  be,  under  the  proposal,  more  explicitly 
attributed  between  the  flag  and  port  States.  In  any  case,  as  explained  above,  it  will  overall 
decrease compared to status quo. As Sweden noted in the consultation: "In order to avoid that 
it  is  always  the  flag  State  performing  inspections  on  their  own  vessels,  it  should  be  clearly 
stated  which  host  State  is  responsible  for  invitations,  inspections  and  documentation  in 
Thetis." 

Clarification of ambiguous requirements 

Over  the  time  that  Directive  1999/35/EC  has  been  in  place,  a  key  issue  has  emerged  to 
undermine its effectiveness in ensuring a common safety level: Different interpretation of the 
time  window  between  the  bi-annual  inspections.  In  addition,  the  Directive  leaves  certain 
ambiguity as regards whether a survey during a regular service should be carried out when the 
ship is sailing or whether this survey can be carried out in port. 

6.2.3.  Regularity of inspections 

Article 8 of Directive 1999/35/EC indicates that every 12-month period a specific survey and 
a  survey  during  regular  service  must  be  carried  out  by  host  States.  Although  it  was  the 
intention of the Legislator that the two inspections are carried out with a certain time lag, i.e. 
5-6 months, the fitness check demonstrated that this has not always been the case. While in 
some  Member  States  these  two  inspections  are  carried  out  with  a  time  interval  from  4  to  6 
months,  in  others  the  two  annual  inspections  are  carried  out  on  consecutive  days  (BE,  BG, 
MT, PT and EL “within a short period of time”; also in Norway).25 This latter practice means 
that, in reality, the ship is only inspected once per year. 

To  remove  the  ambiguity  of  this  requirement  and  to  ensure  a  common  safety  level,  the 
regularity  of  the  two  annual  inspections  should  be  specified.  In  view  of  the  fitness  check 

25  

See Annex 4 of SWD(2015)197. 

27 

 
 
                                                            
recommendations,  it  is  therefore  proposed  to  clarify  that  the  two  annual  inspections  should 
take place at regular, approximately six monthly intervals, i.e. that: 

  An  annual  inspection  during  a  regular  service  ('in-service')  should  take  place  not 
before  five  months  but  not  later  than  seven  months  following  the  annual  specific 
survey ('in port'). 

14  Member  States  and  Norway  agreed  with  the  proposed  wording  while  4  Member  States 
disagreed and 1 had no opinion. Addressing the concerns of those who disagreed, account will 
be  taken  of  vessels  in  seasonal  service  (functions  of  the  database  would  be  used  for  this 
purpose),  as  highlighted  by  ES  and  IE.  BE  and  DK  disagreed  with  the  need  to  clarify  the 
regularity  of  the inspections  altogether,  noting  that  it  should  be  up  to  the  administrations  to 
decide  (and  that  it  would  limit  the  flexibility  of  combinations  with  the  annual  flag  State 
survey).  In  response  to  these  comments,  the  safety  objective  of  this  Directive  needs  to  be 
recalled, whereby it was not intended to prescribe two inspections per year that could then be 
carried out at the same time or within a short period of time. 

6.2.4.  Content of survey during a regular service 

Concerning  the  content  of  the  'in-service'  survey  (i.e.  a  survey  during  a  regular  service), 
Article 8 includes  vague wording  such that 'enough' items  listed in Annex IV (and Annex I 
and III) should be covered. This leaves certain ambiguity not only about its content but also 
whether this survey should be carried out when the ship is sailing or whether this survey can 
be carried out in port.  

In  fact,  the  requirements  of  Annex  IV  clearly  necessitate  at  least  a  part  of  the  survey  to  be 
carried out while the ship is sailing (such as checking on the availability of seats, the blocking 
of passageways, safety announcements during voyage, ventilation of the vehicle decks etc.).  

However, the current  wording  may, in  theory,  allow a systematic omission of elements  that 
can be inspected only while the ship is sailing. To remove this ambiguity while preserving the 
notion  of  'in-service'  surveys  and  retaining  sufficient  flexibility  for  the  Member  States,  it  is 
therefore proposed to: 

  Clarify that 'in-service' surveys shall be carried out in accordance with Annex IV and, 
in  addition,  must  include  items  from  Annex  I  and  III  selected  by  the  national 
administration  to  ensure  that  the  ferry  or  craft  continues  to  fulfil  all  the  necessary 
requirements for safe operation. 

In consultation, the large majority of Member States (16) and Norway agreed that Annex IV 
should form basis of in-service inspection along with selected items from Annexes I and III. 
PL and DK disagreed and argued that in-service surveys shall be 'occasionally' carried out on 
the vessel underway (which would however defeat the purpose of the proposed clarification 
and  the  fact  that  in-service  surveys  are  meant  to  take  place  at  least  partly  when  the  ship  is 
sailing) and that safety of operations needs to be preserved (which would always be the case). 

28 

 
 
Simplification 

The  Directive  also  includes  a  number  of  concepts  and  requirements  that  have  become 
outdated  or  redundant.  This  relates  primarily  to  the  concept  of  the  'host  State'  that  was 
introduced by this Directive to facilitate the cooperation with non-EU Member States prior to 
the  2004  EU  enlargement.  In  this  context,  it  called  for  the  surveys  to  be  carried  out  by 
multinational  teams  of  the  involved  host  States  (i.e.  EU  as  well  as  non-EU  members).  The 
Directive also includes provisions that have  been either superseded by other legislation (i.e. 
accident investigation) or evaluated as redundant. 

6.2.5.  Concept of host State 

Directive 1999/35/EC in Article 2(k) defines host State as a 'Member State to or from whose 
port(s)  a  ro-ro  ferry  or  a  high-speed  passenger  craft  is  engaged  on  a  regular  service'.  This 
concept  was  found  to  be  no  longer  relevant  in  practice  and  unnecessarily  add  to  the  legal 
complexity  of  the  EU  passenger  ship  safety  regulatory  framework.  In  view  of  the  fitness 
check recommendations and in line with the proposed alignment with Directive 2009/16/EC, 
it is therefore proposed to: 

  Replace the concept of the host State by the port State (for vessels subject to port State 

control) or by the flag State (for vessels not subject to port State control). 

In  correspondence  to  the  state-of-art  maritime  legislation,  this  proposal  re-attributes  the 
specific  survey  requirements  according  to  the  flag/port  States  responsibilities  rather  than 
specific type of vessels they apply to. 

In consultation, all Member States except one (IE) and Norway agreed to remove the concept 
of  host  state  (2  MS  expressed  no  opinion).  IE  noted  that  they  consider  the  concept  of  host 
state to be an important concept under 1999/35/EC but did not provide further explanation. In 
addition,  UK  noted  that  the  concept  of  host  state  should  be  also  removed  from  Directive 
2009/45/EC (which is also proposed). 

6.2.6.  Joint inspections 

While Article 11 of Directive 1999/35/EC requires the ro-pax surveys to be carried out by a 
team composed of qualified inspectors of the involved host State(s) (para 2), it allows for an 
involved host State to carry out a survey at the request of another involved host State (para 3). 
At the time of its conception (i.e. more than 15 years ago), the objective of this provision was 
to allow for multinational teams composed of both EU as well as non-EU members.  

Although the fitness check showed that there is a clear value in carrying out joint in-service 
inspections, these have proven to be logistically difficult to coordinate and the large majority 
of Member States confirmed that a specific survey by a host State can be accepted by other 
involved  host  States  without  the  necessity  of  creating  multi-national  teams.  In  view  of  the 
fitness  check  recommendations  and  in  line  with  the  proposed  alignments  with  Directive 
2009/16/EC, it is therefore proposed to: 

29 

 
 
  Remove  the  requirement  that  the  ro-pax  surveys  should  be  carried  out  by  default 
jointly by the involved host State(s) and replace it by a possibility for the inspector of 
the competent authority of the port State to be accompanied (by a port State inspector 
of  another  Member  State,  or  if  requested  by  the  company  by  a  representative  of  the 
flag State of the vessel).  

Box 1: Applicability of joint inspections 

For  vessels  operating  domestically,  the  concept  of  joint  inspections  does  not  apply.  For 
vessels operating between an EU MS and a third country where the flag of the vessel is the 
same as that of the MS, the decision to invite a third country to its ro-pax inspection would be, 
in the spirit of subsidiarity, fully at discretion of that Member State. For vessels subject to port 
State control, the spirit of joint inspections is proposed to be retained as described above. 

Similarly to the removal of host state concept, the large majority of Member States (16 MS) 
and Norway agreed in consultation to remove the requirement of joint inspections by default. 
2 MS objected (IE and another MS). IE noted concerns regarding possible difficulties arising 
where detainable deficiencies are identified on board a vessel which is en route to a MS not 
involved in the inspection onboard (such situation can in principle happen already today and 
no such concern has been registered since the Directive's entry into force).  

DK  noted  that  although  they  agreed  with  the  proposal,  it  may  in  case  of  lack  of 
communication between the administrations lead to more individual surveys than today (not 
clear though how this could happen, as the frequency would be clearly defined both under the 
PSC regime and the new Directive replacing Directive 1999/35/EC). PL agreed in general but 
not  in  case  where  host  State  is  the  same  as  the  flag  State  (similar  comment  by  DK  is 
addressed in Chapter 6.2.2.). 

6.2.7.  Initial verification 

Articles 4 and 5 of Directive 1999/35/EC provide for specific requirements related to 'initial 
verifications'  in  relation  to  vessels,  companies  and  flag  States.  Given  that  these  provisions 
have been either superseded by other legislation (i.e. accident investigation) or are proposed 
to be aligned with the port/flag State responsibilities and are already embedded in the initial 
surveys mandated by Article 6, it is proposed to: 

  Remove the outdated and redundant elements of Articles 4 and 5, in particular related 

to accident investigation, VDR, specific stability requirements and certification.  

This  proposal  is  expected  to  result  in  simpler  requirements  for  initial  surveys  without 
compromising on their content. In consultation, the large majority of Member States (16) and 
Norway agreed to remove Articles 4 and 5 entirely and one MS expressed no opinion. IE and 
FR disagreed, IE noting that they are not aware that such requirements can be checked during 
PSC (to be noted though that the requirements of Annex I are mainly ISM related therefore 
they should be inspected during PSC) and FR arguing for the possibility to access documents 
before the initial specific inspection.  

30 

 
 
In view of proportionality and subsidiarity, it is nonetheless considered that the decision as to 
whether and which  documents shall be provided in  advance of the initial inspections would  
be left to flag State (analogous concept exists in the port State control regime and is widely 
used). It is therefore also proposed to indicate that 

  When requested by a Member State, companies shall provide evidence of compliance 

in advance. 

This proposal is directly linked to removing Articles 4 and 5 as proposed above. 

Increase legal clarity 

The review also includes a number of proposals removing outdated, inconsistent or redundant 
provisions and references from the Directive. 

6.2.8.   Outdated and redundant provisions 

Firstly, Annex IV of Directive 1999/35/EC refers to 'indicative guidelines' and 'unscheduled' 
surveys. Firstly, Article 8 refers to Annex IV as a mandatory  part of the 'in-service' surveys 
and therefore cannot be considered to be indicative. For the sake of legal clarity, it is therefore 
proposed to: 

  Remove  the  reference  to 

'indicative  guidelines'  from  Annex  IV  without  any 

replacement. 

Secondly,  given  that  the  Directive  provides  for  2  annual  inspections  carried  out  in  regular 
intervals, the notion of 'unscheduled' surveys could be interpreted as 'unannounced' surveys. 
The intention of 'unannounced' surveys is to give national administrations the opportunity to 
inspect the ship in a state as close as possible to its usual operation (related to, for example, 
operability of communication equipment, maintenance of safety equipment etc.).  

However it should also be noted that Article 11(4) and (5) of Directive 1999/35/EC provides 
that the host State shall, if requested by the company, invite the flag State administration to 
participate in any survey and that the host state shall take due account of the operational and 
maintenance  schedule  of  the  vessel.  Therefore  it  appears  that  the  reference  to  'unscheduled 
surveys' in the Title of Annex IV is not supported by the text of the Directive or the Annex.  

In  the  consultation,  several  alternatives  have  been  proposed:  (a)  to  replace  the  notion  of 
'unscheduled'  surveys  in  Annex  IV  by  'unannounced'  surveys',  (b)  to  remove  the  notion  of 
'unscheduled' surveys from Annex IV without any replacement, and (c) to remove the notion 
of 'unscheduled' surveys from Annex IV and replacing it by a requirement that such surveys 
shall be occasionally carried out in an unannounced manner (and leaving the decision on the 
frequency to the satisfaction of national administrations). Member States had slight preference 
for option (c) – 10 Member States preferred this alternative, while 4 Member States preferred 
option (b) and 3 Member States preferred option (a) (plus DE that expressed its preference at 
a later stage). 

31 

 
 
 
Taking into account the split views and the fact that any decision to carry out such surveys in 
an  unannounced  manner  and  their  frequency  would  be  anyhow  left  to  the  discretion  of 
national administrations, it is proposed to: 

  Remove the notion of 'unscheduled' surveys from Annex IV without any replacement. 

Thirdly,  Directive  1999/35/EC  provides  for  a  notification  to  the  Commission  in  case  of 
persistent disagreement between host States {Art. 11(7) and (8)}, in relation to Articles 4 and 
5(1). Since the entry into force of this Directive, this mechanism has not been used.  

For vessels falling within the scope of port State control, as proposed, it would be replaced by 
the existing Paris MoU dispute resolution mechanism. No specific replacement is envisaged 
for vessels sailing domestically or  between an EU flag State and a third country as the flag 
state and the inspecting state would be the same. It is therefore proposed to: 

  Remove the dispute mechanism related to requirements of Articles 4 and 5(1) without 

any replacement. 

Fourthly,  the  Directive provides  for  the  Commission  to  allocate  an  identification  number  to 
vessels that do not have an IMO identification number {Art. 13(3)}. This provision has never 
been used and is considered redundant. It is therefore proposed to: 

  Remove  the  mechanism  for  allocating  an  identification  number  without  any 

replacement. 

Finally, a number of other outdated references have been removed: 

  Reference to Directive 98/17/EC replaced by a reference to Directive 2009/45EC; 
  Reference to Directive 94/57/EC replaced by a reference to Regulation (EC) 

391/2009; 

  Reference to Decision 1999/468/EC replaced by a reference to Regulation (EU) 

182/2011 where appropriate; 

  Reference to prior cooperation, navigational guidance and contingency planning 

operational restrictions for HSC removed {Article 13(1), (2), (4) and (5)}. 

6.2.9.  Inconsistent and incorrect provisions 

Directive 1999/35/EC refers to 'surveys' rather than 'inspections'. The word survey is used in 
international conventions to indicate the obligation of flag States to monitor the compliance of 
ships  with  the  international  standards  and  to  issue  or  renew,  where  relevant,  certificates. 
However, the special inspection regime for ro-pax ferries and HSC on regular service cannot 
be  considered  a  survey  (no  certificates  are  issued  or  renewed)  and  the  relevant  inspection 
forms  are  not  and  cannot  be  considered  as  seaworthiness  certificates.  To  ensure  the  correct 
use of terminology and in view of the fitness check recommendations, it is therefore proposed 
to: 

32 

 
 
 
 
  Replace the term 'survey' by 'inspection' when referring to specific ro-pax surveys as 

currently provided for in Directive 1999/35/EC. 

In  addition,  a  number  of  definitions  have  been  aligned  as  far  as  possible  with  Directive 
2009/16/EC, namely: 

  Format of the notification report aligned with Directive 2009/16/EC; 
  Provisions for the prevention of operation aligned with Directive 2009/16/EC. 

33 

 
 
 
 
 
6.3.  Directive 98/41/EC 

Directive 98/41/EC on the registration of persons sailing on board passenger ships operating 
to  or  from  ports  of  the  Member  States  of  the  Community  aims  to  ensure  that  the  safety  of 
passengers is not compromised by exceeding the maximum authorised number of persons on 
board and that any search and rescue in the aftermath of any accident or incident which may 
occur can be dealt with effectively. The Directive provides for the counting and registration of 
passengers and crew on board of passenger ships operating to and from the EU ports. 

Clarification of scope: Definitions 

The fitness check and a recent increase in exemption requests and notifications submitted in 
accordance with Article 9 of Directive 98/41/EC has revealed that the scope of application of 
the Directive is not entirely clear. Furthermore, the implementation experience showed that in 
certain  cases  the  Directive's  provisions  such  as  the  key  threshold  of  20  nautical  miles  is 
interpreted  in  a  different  manner,  which  may  hinder  an  effective  implementation  of  the 
legislation. 

6.3.1.   Scope of application: Sea-going vessels 

Article  2  defines  'passenger  ship'  as  a  sea-going  ship  or  sea-going  high-speed  craft  which 
carries more than twelve passengers. This  definition was found to  be both ambiguous ('sea-
going')  and  inconsistent  with  Directive  2009/45/EC.  In  order  to  remove  inconsistencies  in 
definitions  across  EU  passenger  ship  legislation  while  preserving  the  objectives  of  the 
Directive, it is therefore proposed to: 

  Remove the inconsistency by aligning the definition of passenger ship with Directive 

2009/45/EC, i.e. a ship which carries more than 12 passengers; and 

  Clarify that Directive 98/41/EC does not apply to passenger ships exclusively engaged 

in a 'port area', as defined in Article 2(r) of Directive 2009/45/EC. 

Without  changing  the  scope  of  the  Directive,  this  proposal  aims  at  clarifying  that  for  the 
purposes  of Directive  98/41/EC, 'sea area' ends at the inner border  of sea area D as already 
defined by the Member States for the purpose of Directive 2009/45/EC. This will also allow 
to align the scope of application across the EU passenger ship safety legislation and enhance 
thus legal clarify and consistency. 

This  proposal  is  not  intended  to  impact  on  Member  States'  own  definitions  of  sea  area 
boundaries  (as  questioned  by  the  UK).  As  it  is  already  the  case,  it  remains  within  the 
discretion of Member States to decide where sea area D should end and where other non-sea 
areas  should  start  (and  how  they  should  be  demarcated),  such  as  ports,  estuaries  or  similar 
sheltered areas, inland waterways etc. Correspondingly, it remains fully within the discretion 
of national authorities to define the conditions for passenger registration for ships sailing in 
these areas. 

34 

 
 
This clarification was supported by all Member States and Norway that replied to the targeted 
consultation, with the exception of IE who did not find the current wording of the Directive 
ambiguous. 

6.3.2.  Protected sea areas 

Article 2 defines 'protected sea area' as an area sheltered from open sea effects where a ship is 
at  no  time  more  than  six  miles  from  a  place  of  refuge  where  shipwrecked  persons  can  land 
and in which the proximity of search and rescue facilities is ensured. Although the aim of this 
definition is to mirror sea area D as defined in Directive 2009/45/EC, the two definitions are 
not identical – which unnecessarily creates ambiguity and potential confusion with the notion 
of port (sheltered) area defined in Directive 2009/45/EC. To remove this inconsistency and to 
maximise the coherence of the EU passenger ship safety regulatory framework, it is therefore 
proposed to: 

  Replace  the  reference  to  protected  sea  area  in  Article  9  of  Directive  98/41/EC  by  a 

reference to sea area D as defined in Directive 2009/45/EC. 

In the consultation, while 15 Member States and Norway agreed with the proposed alignment 
and  clarification,  several  comments  have  been  made  concerning  the  fact  that  the  two 
definitions  are  currently  not  identical  and  warned  against  changing  the  status  quo.  In 
addressing these concerns, the following aspects need to be taken into consideration: 

First, it should be recalled that the only purpose of defining 'protected sea area' in Directive 
98/41/EC is to allow for a possibility of exemptions from the Directive's requirements under 
conditions  defined  in  Article  9(2b)  and  9(2c).  To  date,  no  such  exemption  has  yet  been 
approved by the Commission, although several cases are currently under consideration (from 
DE and FR). 

Second,  there  is  currently  significant  legal  uncertainty  as  to  the  interpretation  of  what  a 
criterion  of  'sheltered  from  open  sea  effects'  stands  for  in  measurable  terms.  Some  experts 
consider this to be max 0.5 m of significant wave height, other consider this to be up to 1 or 
1,5 m. Therefore, in response to comments of FR (who found sea area D less restrictive) and 
DE and UK (who found it more restrictive), it is clarified that Member States shall remain to 
be  best  placed  to  assess  the  need  for  granting  an  exemption  in  an  area  that  is,  nonetheless, 
clearly delimited for such purpose.  

Finally,  two  Member  States  noted  that  the  reference  to  the  proximity  of  search  and  rescue 
facilities should be kept, which indeed best fits as a criterion for granting the exemption. It is 
therefore proposed to add this condition to the exemption in Article 9(2c) that would read as 
follows:  

  A  Member  State  may  exempt  passenger  ships  sailing,  exclusively  in  protected  sea 
areas, in which the proximity of search and rescue facilities is ensured, between two 
ports or from and to the same port without intermediate calls from the obligations laid 
down in Article 5. 

35 

 
 
Similarly  to  the  above  mentioned  alignment,  it  was  originally  envisaged  to  align  also  a 
definition  of  sea  area  defined  for  exemption  purposes  under  Article  9(4)  with  a  sea  area  C. 
Although a large majority of Member States agreed with such alignment, it was pointed out 
(namely  by  IT)  that  such  alignment  would  materially  change  the  current  conditions  for 
exemption  (introducing  the  distance  limitation)  and  that,  unlike  in  case  of  the  protected  sea 
area, the current definition is sufficiently clear and operational (significant wave height of 2 
meters). This proposal was therefore dropped. 

6.3.3.  Threshold of 20 nautical miles 

Article 5(1) requires certain information on persons on board to be recorded for every voyage 
of  'more  than  twenty  miles  from  the  point  of  departure'.  This  definition  was  found  to  be 
ambiguous  given  the lack  of  clarity  whether  this  distance  restarts  at  each  intermediate  stop, 
whether  it  is  measured  as  a  sailed  distance,  etc.  In  order  to  clarify  this  definition  and  as  a 
follow-up to the fitness check recommendations, it is therefore proposed to: 

  Clarify that the 20 nm distance from the point of departure stands for distance sailed 

by the ship from the port of departure to the next port of call. 

Without  changing  the  criterion,  this  proposal  aims  at  clarifying  that:  (i)  the  20  nm  is  to  be 
calculated as a sailed distance, not as a distance to or from the port of departure, and (ii) this 
distance restarts at each intermediate stop.  

In the consultation, DK and UK pointed out that the originally proposed wording of 'actual' 
distance sailed may indicate that the distance may change from voyage to voyage depending 
on, for example, traffic and weather.  The word 'actual' has been therefore dropped from the 
definition to preserve the status quo. Furthermore, it is not proposed to replace it by the word 
'planned' as suggested by DK.  

Alternative  wordings  have  been  also  put  forward  by  the  UK  (straight  line  measurement 
between  point  of  departure  and  arrival),  IT  (voyage  of  more  than  15  miles  from  a  place  of 
refuge),  IE  (excluding  that  part  of  the  voyage  that  is  within  port  areas),  and  another  MS 
(distance defined by the associated ports of call). These suggestions have not been reflected in 
the proposed wording as they are considered to substantially change the current requirement, 
which was not the intention of this simplification review and was not consulted upon. 

Increasing effectiveness of search and rescue operations 

While experience has shown that an effective search and rescue operation requires immediate 
access  to  accurate  data  as  regards  the  persons  on  board,  such  information  is  not  always 
available  in  real  time  and  in  a  usable  format.  According  to  the  current  requirements,  the 
information has to be stored in the company's system and be – at all times – readily available 
for  transmission  to  the  competent  authority  responsible  for  search  and  rescue.  This 
requirement, dating to 1998, ignores the development of systems such as SafeSeaNet and the 

36 

 
 
National  Single  Window  (introduced  under  Directives  2002/59/EC  and  2010/65/EU26 
respectively)  and  means  that  the  national  competent  authority  has  to  contact  the  shipping 
company  in  the  event  of  an  emergency.  Furthermore,  the  recorded  data  does  not  always 
include  information  on  nationality  making  the  provision  of  consular  and  other  assistance  to 
victims and their relatives more difficult. Finally, operators that already transmit such data to 
the National Single Window are exposed to double reporting regime. 

6.3.4.  Short voyages: Information on number of persons on board  

Article  4(2)  requires  that  the  number  of  persons  on  board  shall  be  communicated  to  the 
'company's  passenger  registrar  or  to  a  shore-based  company  system  that  performs  the  same 
function'.  Taking  into  account  other  EU  law  that  has  entered  into  force  since  1998,  new 
technological system and solutions that have been developed, the fitness check recommended 
to update and bring this requirement in line with the current electronic means of data storage 
and accessibility via the National Single Window.  

The National Single Window was established by Directive 2010/65/EU to provide for a single 
window,  linking  SafeSeaNet,  e-Customs  and  other  electronic  systems,  and  ensuring  that  all 
information  is  reported  once  and  made  available  to  various  competent  authorities  and  the 
Member States. 

In view of the fact that all ships above 300 GT calling in EU ports in principle already have to 
report  the  total  number  of  persons  on  board  in  the  National  Single  Window,  this  provision 
would  allow  them  to  comply  with  both  obligations  in  the  same  manner.  Nonetheless,  it  has 
been  acknowledged  that  small  or  local  operators  (generally  operating  ships  below  300  GT) 
may  still  keep  paper-based  records only  and  would  be therefore  negatively  impacted  by  the 
proposal to encode the total number of persons on board in the National Single Window.  

Member  States  have  been  therefore  asked,  on  the  basis  of  their  experience  of  approving 
passenger  registration  systems,  to  identify  any  instances  where  this  may  be  the  case  and  to 
indicate  whether  they  would  consider  this  proposal  proportionate  and  propose  alternative 
means of data transmission.  

In the consultation, 11 Member States agreed with the proposed transmission of the number of 
persons  on  board  by  means  of  the  National  Single  Window  but  a  significant  number  (9 
Member States and Norway) disagreed with doing so. These Member States raised the issue 
of potentially significant cost implications of investments in information technology systems 
for shipowners operating passenger ships below 300 GT (primarily on domestic voyages) and 
the  proportionality  of  such  requirement  in  view  of  the  search  and  rescue  needs  (with  the 
exception of UK that supported the search and rescue needs but questioned the tool, see Box 2 
below).  

26  

Directive 2010/65/EU of the European Parliament and of the Council of 20 October 2010 on reporting 
formalities  for  ships  arriving  in  and/or  departing  from  ports  of  the  Member  States  and  repealing 
Directive 2002/6/EC (OJ L 283, 29.10.2010, p. 1). 

37 

 
 
                                                            
To address the specific situation of those small shipowners that do not have computer systems 
(as  explicitly  raised  by  FR,  NL  and  one  MS)  or  that  operate  without  internet  connection 
(pointed  out  by  IE  and  UK),  it  is  deemed  necessary  to  provide  for  an  alternative  way  of 
transmitting  the  number  of  persons  on  board.  The  only  feasible  alternative  that  fulfils  such 
criteria and that has been suggested in the consultation (by IE) was found to be the Automatic 
Information System (AIS) of ships.  

AIS is a maritime broadcast system, based on very high frequency radio signals. Ships send 
reports with ship identification, position, course, as well as information on cargo. The use of 
AIS  for  passenger  ships  irrespective  of  size  is  already  an  obligation  under  Directive 
2002/59/EC.  Nonetheless,  under  Directive  2002/59/EC,  exemptions  may  be  granted  by 
Member States for ships below 15 metres in length or 300 GT engaged on non-international 
voyages.  

Box 2: Example 

During the consultation, UK highlighted that it already uses AIS for reporting the number of 
passengers for very short voyages of a few minutes on the River Thames.  

On this basis and in order to eliminate double reporting requirements and to ensure that the 
information  on  the  number  of  persons  on  board  is  made  immediately  accessible  to  the 
designated authority for search and rescue purposes in the event of an emergency or accident, 
it is proposed to 

  Replace  the  requirement  to  transmit  and  store  the  information  on  the  number  of 
persons  in  the  company's  shore-based  system  by  the  requirement  to  record  such 
information  in  the  National  Single  Window  or  make  it  available  by  means  of  the 
Automatic Identification System (AIS). 

It is  envisaged that  the proposed flexibility would on one hand neutralise any significant or 
disproportionate cost increase for small operators and on the other deliver on the key safety 
objective of the Directive, i.e. allow the local search and rescue centre to access the number of 
persons on board at any point of time, regardless of the availability of a contact person.  

For those operators that already transmit this information to the National Single Window, the 
proposed  alignment  with  Directive  2010/65/EU  would  eliminate  a  double  reporting 
requirement. Whether this will have neutral or positive impact on companies' processes will 
depend on a case-by-case basis, determined by their individual use of IT. In any case, it will 
remove  the  coexistence  of  similar  reporting  requirements  spread  across  several  pieces  of 
legislation  with  different  scope  and  coverage  that  reduces  legal  clarity  and  hinders  an 
effective implementation and enforcement. 

In  the  discussion  on  this  proposal  (see  Annex  2),  the  experts  welcomed  the  flexibility  of 
having  an  alternative  to  the  National  Single  Window.  A  number  of  comments  were  made 
regarding  the  functioning  of  AIS  as  a  pre-programmed  device  and  the  fact  that  old  AIS 
devices  may  need  to  be  upgraded.  Furthermore,  some  experts  underlined  the  fact  some 

38 

 
 
Member  States  made  use  of  the  possibility  to  exempt  domestically  sailing  passenger  ships 
below 300 GT under Directive 2002/59/EC from the obligation to carry AIS on board.  

In  response  to  this  comment,  it  is  considered  that  it  should  be  left  to  the  national 
administration  to  assess  whether  such  exemptions  granted  under  different  legal  and  market 
situation  remain  justified.  To  inform  such  decision,  it  should  be  recalled  that  the  AIS  is  a 
rapidly  changing  technology,  the  price  of  which  has  rapidly  dropped  since  Directive 
2002/59/EC  entered  into  force  (i.e.  14  years  ago).  An  AIS  system  (transmitting/receiving) 
with additional software to connect to a computer (which maybe already available on board) 
currently  costs  approximately  2000  EUR/unit  and  the  price  is  continuously  declining. 
Considering  furthermore  that  such  requirement  will  be  accompanied  by  a  possible  phase-in 
period of several years, the foreseen expenditure is not assessed to be significant and in any 
case  proportionate  in  respect  to  the  overall  increase  of  the  effectiveness  of  the  search  and 
rescue operations in case of distress. 

Although  it is  not  known  which  Member  States  granted  such  exemptions  and  to  how  many 
operators (given that Directive 2002/59/EC does not require any notifications in this respect), 
according  to  the  REFIT  fitness  check  questionnaire,  out  of  the  922  ships  certified  under 
Directive 2009/45/EC only around one third are below 300 GT. It can be estimated that only a 
small minority of these have been granted an exemption by the Member States from carrying 
out  an  AIS  system;  which  further  reduces  the  number  of  ships  which  would  need  to  make 
such investment. 

Finally,  in  conjunction  with  the  proposed  flexibility  of  reporting  the  number  of  persons  on 
board  and  the  clarification  that  Directive  98/41/EC  does  not  apply  to  port  (or  similarly 
sheltered  areas)  defined  by  Member  States,  it  is  considered  that  the  existing  possibility  to 
exempt certain operators from obligation to report the number of persons on board {according 
to Article 9(2b)} is no longer justified. The implementation experience has shown that such 
exemption has anyhow not been used by Member States (with only 2 cases assessed so far, 
one from SE where it was concluded that Directive 98/41/EC does not apply and one from FR 
where the assessment is still pending). 

Therefore,  taking  duly  account  of  the  safety  benefit  of  an  immediate  availability  of 
information  on  the  number  of  persons  to  search  and  rescue  authorities,  and  the  significant 
progress  in  communication  technologies  since  the  adoption  of  Directive  98/41/EC,  it  is 
proposed to: 

  Remove a possibility to exempt passenger ships operating, exclusively in protected sea 
areas, regular services of less than one hour between port calls from the obligation to 
communicate the number of persons on board on shore.  

As explained above, with only one case pending so far, the removal of this provision is not 
expected  to  have  any  impact  in  practice.  It  means  that  the  operators  have  to  already 
communicate the number of persons on board to shore – be it via telephone, paper, or radio. 
This action would be replaced, if AIS is used, by a similar action of encoding the number in 
the AIS transponder. The difference between these two actions is considered to be negligible. 

39 

 
 
6.3.5.  Long voyages: Passenger and crew lists 

Article  5(2)  requires  that  the  list  of  passengers  and  crew  shall  be  communicated  to  the 
'company's  passenger  registrar  or  to  a  shore-based  company  system  that  performs  the  same 
function'. Taking into account other pieces of EU law that have entered into force since 1998, 
new  technological  system  and  solutions  that  have  been  developed,  the  fitness  check 
recommended to update and bring this requirement in line with the current electronic means 
of data storage and accessibility via the National Single Window.  

Unlike for the short voyages where only the number on persons on board has to be recorded, 
for  long  voyages  (above  20  nautical  miles)  the  Directive  already  requires  the  list  of 
passengers  and  crew  to  be  stored  in  a  format  that  is  easy  to  read  and  easily  available.  This 
requirement  in  principle  already  implies  storage  of  passenger  data  in  an  electronic  format. 
Only one Member State (NL) pointed out during the consultation that there is a segment of 
traditional  vessels  that  keep  passenger  and  crew  lists  in  paper  format  only.  It  was  then 
discussed  whether  this  practice  is  in  line  with  the  safety  objectives  and  requirements  of  the 
Directive and what is the likelihood that this would still be the case when the proposal can be 
expected to enter into force (see Annex 2). 

Therefore,  given  that  the  technical  interface  of  National  Single  Window  is  very  flexible 
(accepting e.g. Excel files), the requirement to transmit such (already existing) electronic file 
is  not  expected  to  generate  any  significant  cost  increase  for  operators  that  are  not  yet 
connected to National Single Window. In principle, recording the lists in the National Single 
Window is a similar action to transmitting them to the registration system of the company (i.e. 
as long as they are in an electronic format).  

Depending on a case-by-case basis, recording the lists in the National Single Window may, in 
addition  to  the  company's  operation  system,  require  an  internet  connection.  It  is  however 
unlikely that operators on long voyages would not have an internet connection and even if that 
was the case, such investment would be minimal and fully justified by the safety benefits of 
accurate transmission of passenger and crew lists in electronic format. No specific concerns in 
this respect have been raised by the industry stakeholders besides the fact that National Single 
Window is not yet fully operational in all Member States (see Annex 3). 

Furthermore,  this  proposal  would  eliminate  double  reporting  obligation  for  those  ships 
operating between the Schengen and non-Schengen area that already have to report the list of 
passengers  and  crew  in  the  National  Single  Window  (according  to  the  Regulation  (EC) 
562/200627). 

In order to ensure that the information on persons on board is made immediately accessible to 
the  designated  authority  for  search  and  rescue  purposes  in  the  event  of  an  emergency  or 
accident and without prejudice to the right of Member States to exempt certain operators from 

27  

Regulation  (EC)  No  562/2006  of  the  European  Parliament  and  of  the  Council  of  15  March  2006 
establishing  a  Community  Code  on  the  rules  governing  the  movement  of  persons  across  borders 
(Schengen Borders Code) (OJ L 105, 13.4.2006, p. 1). 

40 

 
 
                                                            
this  obligation  according  to  Article  9(2c)  and  9(4)  of  Directive  98/41/EC,  it  is  therefore 
proposed to: 

  Replace  the  requirement  to  transmit  and  store  passenger  and  crew  lists  in  the 
company  registration  system  by  the  requirement  to  record  such  information  in  the 
National Single Window. 

Most Member States agreed with this proposal in the consultation (13 MS). 6 MS (DE, DK, 
IT, NL, PL and UK) and Norway indicated that it may lead to significant impact on operators 
However, no evidence or justification was provided that could demonstrate that this would be 
indeed  the  case.  According  to  DE,  DK  and  PL,  there  may  be  a  negative  impact  but  it  is 
unknown/no explanation was provided. IT indicated that it currently requires reporting on a 
weekly  basis  for  certain  vessels.  NL  recalled  that  some  companies  keep  the  lists  in  paper 
format only. UK (and industrial stakeholders, ECSA) agreed in principle but pointed out that 
National Single Window is not yet fully implemented (there is nonetheless an obligation for 
all Member States to have the National Single Window operating since June 2015 and in any 
case,  by  the  time  the  proposed  amendments  will  enter  into  force,  the  system  must  be  fully 
functional).  

In  this  context,  FR  (and  industrial stakeholders,  ECSA)  proposed  to  await the evaluation  of 
Directive 2010/65/EU before requiring all operators to use NSW. There is however no reason 
why  this  should  be  the  case  as  Directive  2010/65/EU  does  not  define  any  reporting 
obligations,  it  only  facilitates  them.  Furthermore,  it  already  provides  for  the  required  data 
entry of both number of persons on board and passenger/crew lists. Nonetheless, to maximise 
the  simplification  potential,  increase  legal  clarity  and  minimise  unnecessary  changes,  it  is 
proposed to: 

  Simplify,  clarify  and  align,  as  far  as  possible,  the  list  of  required  data  entries  with 
reporting  requirements  into  the  National  Single  Window  (i.e.  regarding  information 
on the first name and age, require only 'forename' and 'year of birth'). 

No alternative option has been identified or suggested by stakeholders that would ensure that 
the information on the persons on board is stored an electronic system that in the event of an 
emergency  or  accident  allows  for  an  immediate  transmission  of  data  to  the  competent 
authority  and  that  already  exists  (i.e.  without  creating  new  systems  or  additional  layers  of 
reporting). 

6.3.6.  Nationality 

Article 5(1) defines which passenger information shall be recorded for voyages of more than 
twenty miles from the point of departure. This list does not currently include information on 
nationality of persons on board. As the consultation process and accidents have also shown, it 
is of outmost importance to have available from the very early stage of a post-accident phase 
not only the number and the list of persons on board (this requirement applies to long voyages 
only, i.e. beyond 20 nautical miles) but also the passengers' nationality.  

41 

 
 
Some  operators  already  report  such  information,  namely  when  using  the  international 
reporting  forms  such  as  FAL  forms  5  and  6  as  provided  for  in  Directive  2010/65/EU.  The 
passenger  information  (name,  date  of  birth,  etc.)  is  currently  recorded  on  a  basis  of  self-
declaration of passengers. To improve the effectiveness of search and rescue operations and in 
view  of  the  fitness  check  recommendations,  it  is  therefore  proposed  that  the  nationality  of 
persons on board is registered: 

  Information on nationality is included in Article 5(1). 

To  ensure  that  operators  face  none  or  marginal  cost  of  such  additional  data  entry,  this 
information  should  be  registered  and  transmitted  to  the  competent  authority  using  the  same 
means  and  criteria  as  the  ones  in  place  for  registering  and  transmitting  the  already  required 
information  on  the  persons  on  board  (i.e.  on  the  basis  of  self-declaration  and  by  using  the 
National Single Window). 

In  the  consultation,  only  DE  and  DK  disagreed  with  including  nationality  in  the  list  of 
passenger information. 15 Member States and Norway agreed and 2 expressed no opinion. FR 
and SE pointed out that nationality has been already added as a requirement in national rules. 
Industrial stakeholders (ECSA) called for retaining the principle of self-declaration. 

6.3.7.  Delay in registering passenger and crew lists 

Article 5(2) requires the lists of passengers and crew to be communicated on-shore 'not later 
than thirty minutes after the passenger ship's departure'. Taking into account the fact that the 
20 nm distance can be sailed (by high-speed craft) in a similar time period, progress made in 
IT  technology  over  the  last  15  years  and  the  fact  that  personal  data  should  in  any  event  be 
collected before departure, the 30 minutes delay in communicating the personal data appeared 
to be no longer justified. 

It was therefore considered to align the communication of passenger and crew lists with the 
communication of the number of persons on board that is, according to Article 4(2), required 
to be communicated on-shore 'before departure'.  

During the consultation, 12 Member States and Norway agreed with the proposed alignment 
but a number of Member States highlighted that once the data is collected (which has to be 
done before departure), certain time is needed to correct recording mistakes (FR), if any; or to 
record persons that boarded at last minute (MT, IT, one MS). FI noted that the requirement 
‘before  departure’  may  result in  delaying the  ship  departure  until  confirmation  is  given  that 
the  information  has  been  transferred.  DE,  FI  and  FR  preferred  to  retain  the  30  delay  while 
Italy  suggested  an  alternative  wording  of  ‘upon  departure’  and  another  Member  State 
suggested  shortening  30  to  10  minutes.  MT  also  proposed  the  shortening  of  the  30  minutes 
window  but  retaining  some  flexibility  due  to  port  clearance  formalities  and  activities 
happening before a vessels departure. Industrial stakeholders (ECSA) called for reporting the 
lists  ‘up  to  the  point  of  departure’  (albeit  it  had  to  be  clarified  that  the  current  requirement 
does not stand for 30 minutes before but after departure). 

42 

 
 
To send a strong signal that the objective is to have such data 'at all times' accessible in case 
of  an  emergency  or  accident  while  reconciling  the  opposing  views  of  Member  States,  it  is 
proposed to retain the current flexibility but to highlight that such data should, in principle, be 
communicated ‘upon departure’: 

  Require  that  the  lists  of  passengers  and  crew  are  recorded  in  the  National  Single 
Window upon the passenger ship's departure but in no case later than thirty minutes 
after its departure. 

Alternatively,  it  could  be  envisaged  to  shorten  the  30  minutes  delay,  for  example  to  10 
minutes  as  suggested  by  one  Member  State.  However,  there  is  no  evidence  at  this  moment 
that  could  demonstrate  that  there  is  justified  difference  between,  for  example,  10,  20  or  30 
minutes. 

Ancillary issues 

Several ancillary changes to definitions and requirements are determined by the modifications 
proposed above and have been therefore reviewed correspondingly. 

6.3.8.  Personal data retention period and accessibility 

Article  8  requires  that  the  company  should  not  keep  personal  data  collected  in  accordance 
with Article 5 (i.e. lists of passengers and crew) longer than necessary for the purposes of this 
Directive.  However,  the  Directive  does  not  indicate  how  long  such  period  should  be  or  on 
what basis it should be defined (in recital 15, it only indicates that this period should be ‘very 
short’). The implementation experience has shown that the data retention period importantly 
differs  across  Member  States  –  ranging  from  hours,  weeks  to  months  after  the  voyage  has 
been (successfully) completed. This difference is primarily driven by the applicable national 
legislation for data protection.  

In the consultation, all Member States and Norway preferred to retain the current flexibility in 
implementing  the  Directive’s  data  retention  provisions.  Italy  called  for  maintaining  the 
responsibility regarding the protection of personal data at national level.  

Nonetheless,  this  should  also  ensure  full  compliance  with  the  EU  rules on  the  protection  of 
personal  data28,  which  requires  retention  period  to  be  clearly  identified.  It  is  therefore 
proposed  to  specify  the  retention  period  in  the  Directive  itself  as  an  essential  requirement 
(without  prejudice  to  other  legal  requirements  where  such  data  is  collected  for  different 
purposes with different retention period) in the following manner: 

  Personal data collected in accordance with Article 5 shall not be kept by the company 

once recorded in the National Single Window; and 

28  

In particular Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 
on  the  protection  of  natural  persons  with  regard  to  the  processing  of  personal  data  and  on  the  free 
movement of such data, and repealing Directive 95/46/EC (General Data Protection Regulation), (OJ L 
119, 4.5.2016, p. 1). 

43 

 
 
 
                                                            
  Personal  data  collected  in  accordance  with  Article  5  shall  not  be  kept  by  Member 

States longer than necessary for the purposes of this Directive that is: 

o  until the moment the ship's voyage in question has been safely completed; or  
o 

in the event of emergency or in the aftermath of an accident, until the possible 
investigation or judiciary proceedings have been completed. 

  Without  prejudice  to  other  reporting  obligations,  once  the  information  is  no  longer 

needed for these purposes, such personal data shall be destroyed.  

Another advantage of this proposal is the transfer of personal data (from a company’s system) 
to  a  common,  secured  environment  where  it  can  be  better  controlled  that  the  data  is 
appropriately  protected  against  accidental  or  unlawful  destruction  or  loss  and  unauthorised 
alteration,  disclosure  or  access.  It  shall  be  also  noted  that  if  the  companies  wish  or  need  to 
retain  the  collected  personal  data,  they  will  have  to  do  that  on  different  legal  basis  but  no 
longer for the purposes of this Directive. 

Furthermore,  the  Directive  currently  provides  for  the  required  information  to  be  made 
available  to  the  designated  authority  for  search  and  rescue  purposes  in  the  event  of  an 
emergency  or  in  the aftermath of an accident  (Article 8, para 2).  Similarly to  the above,  all 
Member  States  and  Norway  agreed  with  maintaining  this  accessibility  policy.  In  their 
comments, the UK noted that National Single Window requires data to be reported only once, 
but  the  data  is  used  for  different  purposes  (as  specified  in  different  pieces  of  legislation), 
hence the data retention may be difficult to comply with. It has to be therefore ensured that 
the recorded data is retained only for the maximum period that, in combination, is determined 
by the set of applicable legislation. 

In  order  to  preserve  the  current  accessibility  of  information  to  the  search  and  rescue 
authorities, it is therefore proposed that: 

  Each Member State shall designate the authority that will have access to the 

information required by this Directive; and 

  Member States shall ensure that in the event of an emergency or in the aftermath of an 
accident, such designated authority has immediate access to the information required 
by this Directive. 

6.3.9.  Responsibilities of passenger registrar 

Article  2  defines  passenger  registrar  as  the  responsible  shore-based  person  designated  by  a 
company to fulfil the ISM Code obligations or a shore-based person designated by a company 
as responsible for the keeping of information on persons who have embarked on a company 
passenger ship. In order to align the definition of passenger registrar with the proposals above 
and to reflect that such person would no longer be responsible for keeping the information but 
rather for recording it in the National Single Window or making it available by means of AIS, 
it is proposed to amend the definition as follows: 

44 

 
 
 
  Passenger  registrar  shall  mean  the  responsible  person  designated  by  a  company  to 
fulfil the ISM Code obligations or a person designated by a company as responsible 
for  the  transmission  of  information  on  persons  who  have  embarked  on  a  company 
passenger ship. 

Originally, it was also foreseen to change the title of passenger registrar and align it with the 
ISM concept of designated person ashore. However, during the consultation, several Member 
States  noted  that  the  change  of  title  may  only  lead  to  confusion  and  that  the  ISM  does  not 
apply to all concerned ships. This proposal has therefore been dropped.  

In addition, IE and another MS noted that for safety purposes, it would be preferable to retain 
the  data  with  the  company  even  if  already  transmitted  via  National  Single  Window  (e.g.  in 
case  of  technical  issues  with  the  electronic  systems).  At  the  moment,  there  is  however  no 
evidence that such double registration shall be necessary. 

6.3.10. Company passenger registration system 

Article  10  requires  that  Member  States  approve  passenger  registration  systems  (both  as 
regards  number  and  the  list  of  persons  on  board).  Given  the  difficulties  encountered  by 
Member States in approving the registration systems of foreign flagged ships, the ambiguity 
as  regards  the  content  and  proof  of  such  'approval'  and  in  line  with  the  proposal  above  to 
record the information on the persons on board in the National Single Window, it is proposed 
to remove the requirement for a formal approval of such systems and to focus instead on the 
verification of the accuracy and timeliness of recording the data. In view of the fitness check 
recommendations, it is therefore proposed to amend Article 10 in a following manner: 

  Member States shall verify the accuracy and timeliness of data registration required 

by this Directive. 

In  the  consultation,  all  Member  States  and  Norway,  with  the  exception  of  DK  and  another 
MS,  agreed  with  this  proposal  (BE  had  no  opinion).  DK  noted  that  replacing  the  system’s 
approval by verification of data registration may present serious administrative burden on the 
administration  without  benefit  of  improving  ship  safety.  In  response,  it  should  be  however 
noted  that  the  Directive  already  requires  Member  State  to  carry  out  random  checks  on  the 
proper functioning of the registration systems. While the timeliness of data registration can be 
easily  checked  in  the  system,  its  accuracy  is  considered  to  be  crucial  for  meeting  the 
Directive’s objectives and ensuring efficient search and rescue operations in case of need. 

On  the  contrary,  the  requirement  to  approve  passenger  registration  systems  has  in  certain 
cases  proven  to  generate  significant  workload  for  some  national  administrations  (e.g.  4250 
working hours in Greece compared to 100 working hours in Italy)29. Such workload, and the 
corresponding  costs,  have  been  evaluated  as  clearly  excessive,  namely  vis-à-vis  its  narrow 
scope,  given  its  partial  overlap  with  the  ISM  code  and  given  the  difficulty  to  verify  the 
approval in the absence of any certificates. Most importantly, its added value was found to be 

29  

See SWD(2015)197. 

45 

 
 
                                                            
limited in addition to other, more substantial requirements focusing on the proper functioning 
of such system. 

In line with the principle of proportionality and subsidiarity, it is considered that the choice of 
means  and  frequency  of  such  verification  should  be  left  to  the  decision  of  national 
administrations.  The  proposed  verification  will  also  fulfil  the  purpose  of  currently  required 
random checks. 

Finally,  in  the  absence  of  evidence  that  personal  data  collected  for  the  purposes  of  this 
Directive need to be verified on the basis of an identity document, it is proposed to maintain 
the status quo, as recommended by the fitness check, and to: 

  Retain  the  principle  of  self-declaration  of  passenger  information  for  voyages  longer 

than 20 nm. 

Increase legal clarity 

The review also includes a number of proposals removing outdated, inconsistent or redundant 
references from the Directive. 

6.3.11.  Outdated references 

  Outdated provision for the Strait of Messina is removed; 
  Reference to Decision 1999/468/EC replaced by a reference to Regulation (EU) 

182/2011 where appropriate. 

6.3.12. Inconsistent provisions 

  Definition of regular service is aligned with Directive 1999/35/EC;  
  Definition of pleasure yachts is aligned with Directive 2009/45/EC; 
  Exemptions procedures are aligned with Directive 2009/45/EC. 

46 

 
 
 
 
 
 
 
 
 
7. 

Monitoring and evaluation arrangements 

For the first time, the fitness check allowed to gather extensive quantitative data in a reliable 
and  proportionate  manner,  requiring  nonetheless  extensive  effort  from  the  Commission, 
EMSA and the Member States. It also revealed the absence of monitoring arrangements that 
significantly  hindered  the  monitoring  and  enforcement  of  the  legislation  (with  particular 
regard  to  Directive  2009/45/EC  for  which  monitoring  and  evaluation  has  been  extremely 
limited). 

The  data  was  limited  both  with  respect  to  the  fleet  of  domestic  passenger  ships  and  safety 
accidents,  as  well  as  the  implementation  of  existing  regulatory  framework.  Adequate 
monitoring  and  reporting  arrangements  therefore  need  to  be  put  in  place,  while  avoiding 
undesirable  new  reporting  obligations  and  administrative  burdens.  The  key  information  on 
fleet, accidents and compliance shall be collected as follows: 

7.1.  Accident statistics 

Data  on  accidents  is  collected  in  the  European  Marine  Casualty  Information  Platform 
(EMCIP), the EU database on maritime accidents established in 2011. The number of years 
for  which  data  is  available  in  EMCIP  is  therefore  still  rather  limited  but  through  continued 
collection more information will become available over time. The longer the EMCIP database 
operates  and  collects  Member  State  data,  the  bigger  the  relevant  dataset  and  better 
information  on  trends  can  be  gathered.  As  it  is  gradually  filling,  this  database  should  over 
time become a source for better accident statistics.   

7.2. 

Fleet evolution 

The situation concerning the data on the size and composition of the fleet is more complex. 
The  2014  data  gathering  exercise  was  the  first  of  its  kind  and  required  several  rounds  of 
consultations,  corrections  and  effort  both  on  the  part  of  national  administrations  and 
EMSA/Commission. A database has been created and would need to be updated to allow for 
monitoring  of  the  EU  domestic  passenger  fleet  composition  and  the  accident  trend.  As  a 
minimum, it will need to be updated in time for the next review of the regulatory framework. 
However,  it  can  provide  useful  information  for  the  policy  makers  (primarily  as  regards  the 
attained safety level and the applicable safety standards).  

In  any  case,  the  update  does  not  necessitate  any  additional  reporting  requirements  as  an 
appropriate  framework  providing  for  the  assistance  of  national  experts  is  already  in  place 
(similarly to the REFIT fitness check, this could be done on an ad-hoc basis by circulating a 
pre-filled  questionnaire  to  members  of  the  expert  group).  It  concerns  primarily  regular 
discussions with national experts in the framework of the expert group, facilitating the shared 
understanding and evaluation of the existing regulatory framework.  

47 

 
 
 
 
7.3. 

Implementation scoreboard 

The  fitness  check  has  also  demonstrated  a  scope  for  further  enhancing  the  exchange  with 
national administrations on the implementation and compliance with the existing provisions. 
In  this  context,  the  EMSA  visits  to  Member  States  have  proven  particularly  valuable  in 
monitoring the implementation of Directive 98/41/EC but also helping with exchange of best 
practices  and  technical expertise.  Such  visits  form  part  of  the  EMSA's  mandate  and  present 
core tasks planned in its annual work programmes.  

It is envisaged that in course of 2016 and 2017, a new model for the planned cycle of EMSA 
visits  to  Member  States  would  be  prepared  to  verify  implementation  of  EU  passenger  ship 
safety  legislation  (i.e. Directives 2009/45/EC, 2003/25/EC, 1999/35/EC and 98/41/EC).  The 
new  cycle  of  EMSA  visits  on  PSS  legislation  should  be  foreseen  to  start  in  2018  at  the 
earliest.  In  view  of  the  above  and  taking  into  account  that  the  full  cycle  of  EMSA  visits  is 
estimated  to  last  5  years,  the  evaluation  cycle  of  the  EU  passenger  ship  safety  legislation 
should be set at 7 yearly interval. 

48 

 
 
 
Annex 1: Summary of targeted consultation on the simplification of EU passenger ship 
safety legislation 

The  objective  of  this  consultation  targeted  at  members  of  the  Passenger  Ship  Safety  Expert 
Group was to support the Commission, assisted by the European Maritime Safety Agency, in 
the concrete formulation of the envisaged simplification proposals, particularly as regards the 
technical  definitions  and  the  clarity  of  the  legal  drafting.  The  results  formed  a  basis  for  the 
discussions that took place during the meeting of the Passenger Ship Safety Expert Group, on 
2 February 2016. 

Consultation period 

Given that the results and recommendations of the fitness check have been fully disseminated 
and the proposals were built primarily on the data collected during the REFIT fitness check 
process, the national administrations had 6 weeks to provide their replies. The deadline was 
set on 26 January 2016 to allow the Commission to process the results and inform the experts 
on  2  February  2016  on  the  outcome  of  the  consultation  and  any  issues  that  were  raised  for 
discussion. 

Format and process followed 

The questionnaire consisted of three main parts. Each one of the sections was dedicated to one 
Directive, therefore Part A contained all the questions relevant to Directive 98/41/EC, Part B 
addressed  the  proposed  amendments  regarding  Directive  1999/35/EC  and,  finally,  Part  C 
followed the same pattern for Directive 2009/45/EC. 

All  the  contributions  were  submitted  through  the  online  questionnaire,  accessible  via  a  link 
distributed to every Member State individually. As the working language of the Expert Group 
is English, the questionnaire was only available in English and, therefore, the same applies for 
the language of the present summary of the replies that have been received.  

Results – EU Member States 

Replies  were  provided  in  total  by  20  countries,  consisting  in  particular  of  19  EU  MS  and 
Norway. More specifically, BE, CY, DE, DK, ES, FI, FR, IE, IT, LT, LV, MT, NL, PL, PT, 
SE and UK participated to the consultation and agreed to be referred to in the Staff Working 
Document under their identity as a contributing MS. Two MS objected and will be referred to 
in an anonymous form. Finally, Norway also provided its feedback; however, an overview of 
the  replies  provided  by  Norway  will  be  reported  under  a  separate  heading.  Their  input  has 
been assessed and taken into consideration, but it has not been included in the  statistics that 
will  be  presented  below.  These  have  been  limited  to  the  feedback  provided  by  the  EU 
Member States. 

The results are presented on a question by question basis, following the same order as in the 
questionnaire. The focus is on the presentation of the statistics, while the specific comments 
and clarifications that several MS provided, as well as specific concerns, are addressed in the 
relevant parts of the Staff Working Document. 

49 

 
 
 
 
 
 
 
 
 
 
A. Directive 98/41/EC on the registration of persons sailing on board passenger ships 
operating to or from ports of the Member States of the Community: 

Question 1 put forward the proposal for the clarification of the scope of Directive 98/41/EC, 
by  aligning  the  definition  of  the  'passenger  ship'  across  the  PSS  legislation,  and  more 
specifically  with  the  definition  found  in  Directive  2009/45/EC.  Moreover,  in  parallel  it  was 
suggested  to  clarify  in  Article  3  that  Directive  98/41/EC  does  not  apply  to  passenger  ships 
exclusively  engaged  in  a  'port  area',  as  defined  in  Article  2(r)  of  Directive  2009/45/EC.  All 
Member States, with the exception of IE, agreed with the proposal to streamline the scope and 
definitions of the existing PSS legal framework. 

1. Definition of sea-going ships 

Answers 

Yes 

No 

No 
opinion 

18 

1 

0 

The alignment of the existing legal regime was also the basis for the proposal of question 2, 
which was supported by 15 Member States.  The replacement  of the references to  'protected 
sea  area'  throughout  the  Directive  by  a  reference  to  'sea  area  D,  as  defined  in  Directive 
2009/45/EC', was not accepted by DE and FR, while IE and one MS, raised the issue of the 
importance  of  maintaining  the  reference  to  'the  proximity  of  search  and  rescue  facilities  is 
ensured', due to its relevance for this Directive in particular. 

2. Definition of protected sea area  Answers 

Yes 

No 

No opinion   

15 

4 

0 

Question  3  aimed  in  replacing  the  reference  of  Article  9(4)  to  an  'area  where  the  annual 
probability  of  the  significant  wave  height's  exceeding  two  metres  is  less  than  10  %'  by  a 
reference to sea area C , as defined in Directive 2009/45/EC. The majority of Member States 
(15)  agreed  with  the  replacement,  which  also  serves  the  purpose  of  the  alignment  with  the 
existing PSS legislation. DE,  FR, IT and one  MS objected on the grounds of the  difference 
between  the  scope  of  the  two  Directives,  the  existing  possibility  to  grant  exemptions  and 
potential of further clarification of the definition. 

50 

 
 
 
 
 
 
 
 
 
 
3. Definition of sea area in Article 
9(4) 

Answers 

Yes 

No 

No opinion   

15 

4 

0 

Question 4 proposed a clarification of the 'more than twenty miles from the point of departure' 
element  of  Article  5(1)  of  the  Directive,  which  requires  certain  information  on  persons  on 
board  to  be  recorded  for  such  voyages.  The  proposed  clarification  was  to  include  'actual 
distance  sailed  by  the  ship  from  the  port  of  departure  to  the  next  port  of  call'  and  it  was 
supported by 14 MS, while DK, IE, IT, NL and UK proposed some alternative wordings, due 
to the potential ambiguity the proposed amendment may also entail. 

4. Definition of 20 nm threshold 

Answers 

Yes 

No 

No opinion   

14 

5 

0 

On  the  transmission  of  the  number  of  the  persons  on  board,  the  first  part  of  question  5 
contained  the  proposal  to  replace  the  references  to  'company's  passenger  registrar'  and  to  'a 
shore-based company system' in Article 4(2) by a reference to the National Single Window, 
as  established  by  Directive  2010/65/EU.  8  Member  States  disagreed  (DE,  DK,  ES,  FR,  IE, 
MT, UK and one MS), while a total of 11 Member States supported the proposal. The main 
elements  of  concern  were  the  additional  burden  for  small  operators  and  the  maturity  of  the 
NSW. An alternative was also suggested by IE towards maintaining the obligation to report 
electronically, but through a different system, the AIS. 

5a. Recording number of persons on 
board in NSW 

Answers 

Yes 

No 

No opinion 

11 

8 

0 

51 

 
 
 
 
 
 
 
 
 
 
 
 
On the question of the potential negative impact of this proposal on operators, in particular to 
those operating ships below 300 GT, the majority of Member States agreed that no significant 
negative impact is to be expected (12 in total, i.e DE, DK, ES, FR, IE, IT, MT, NL, PL, SE, 
UK  and  one  MS),  6  Member  States  disagreed  and  CY  gave  no  opinion  on  the  matter. 
Comments  related  to  the  need  for  additional  expenses  for  small  operators  towards  securing 
internet connection (IE, UK) and other additional expenses. 

5b. Impact of recording number of 
persons on board in NSW 

Answers 

Yes 

No 

No opinion 

12 

6 

1 

Some  comments  were  also  received  on  the  proportionality  of  the  measure  in  view  of  the 
search  and  rescue  needs,  which  was  addressed  on  the  last  part  of  question  5.  From  the 
feedback received, the issue of the small operators (IE, SE, FR, UK) was again raised as the 
main concern. Moreover, DK and NL mentioned the efficiency of the current system in place 
(option to have paper-based passenger lists) and the need to be maintained as an alternative. 
IE underlined the need to consider alternatives to the NSW, such as the AIS. 

Regarding the transmission of the passengers lists, it was proposed to replace the references to 
'company's passenger registrar' and to 'a shore-based company system' in Article 5(2) of the 
Directive by a reference to National Single Window as established by Directive 2010/65/EU. 
The proposal was supported by 13 MS, while 6 (DE, DK, IE, MT and one MS) expressed a 
number of concerns regarding the implementation of this measure at this moment. 

6a. Recording passenger and crew 
lists in NSW 

Answers 

Yes 

No 

No opinion 

13 

6 

0 

52 

 
 
 
 
 
 
 
 
 
 
Due to the difference in the operators that are concerned by this measure, there was a similar 
but not identical feedback on the impact. From the replies that have been provided, 9 Member 
States agreed that there will be no significant impact (CY, ES, FI, FR, IE, LV, PT, SE and one 
MS), 8 disagreed (BE, DE, DK, IT, MT, NL, PL and UK) and two Member States expressed 
no opinion on the issue.  

6b. Impact of recording passenger 
and crew lists in NSW 

Answers 

Yes 

No 

No opinion 

9 

8 

2 

Question  7  addressed  the  obligation  under  Article  5(2)  for  communication  of  the  list  of 
passengers and crew 'no later than thirty minutes after the passenger ship's departure'. Aiming 
to align the time at which the number and information on persons on board can be accessed in 
case  of  an  emergency,    the  proposal  was  to  record  the  lists  of  passengers  and  crew  in  the 
National  Single  Window  'before  departure'  (i.e.  up  to  the  point  of  departure).  There  was  an 
overall  support  of  the  proposal  by  12  Member  States.  7  Member  States  replied  negatively 
(DE, DK, FI, FR, IT, MT and one MS) and mainly agreed with the importance of immediate 
communication, but underlining at the same time the need to retain certain flexibility due to 
last minute boarding, cross checking of the lists etc. Some alternative wordings were proposed 
in that respect. 

7. Delay in recording passenger and 
crew lists 

Answers 

Yes 

No 

No opinion 

12 

7 

0 

53 

 
 
 
 
 
 
 
 
 
Regarding  the  personal  data  collection  from  the  passenger  and  crew  lists  Article  8  requires 
that the company should not keep the data collected longer than necessary for the purposes of 
this  Directive.  It  has  been  noted  that  the  implementation  of  this  requirement  differs  across 
Member States. It was not proposed to change the status quo. The vast majority of Member 
States agreed to this proposal, with the exception of IT. 

8. Data retention and access 

Answers 

Yes 

No 

No opinion   

18 

1 

0 

In order to align the definition of 'passenger registrar' with the amendments above, question 9 
proposed to replace the title of Article 2 'passenger registrar' by 'designated person ashore' and 
in  parallel  replace  his  responsibility  for  'keeping'  the  information  by  'recording'  it  in  the 
National  Single  Window.  A  majority  of  Member  States  (14)  agreed  with  the  envisaged 
amendments, however, 5 Member States expressed their opposition (DK, FI, IE, MT and one 
MS). 

9. Passenger registrar 

Answers 

Yes 

No 

No opinion 

14 

5 

0 

54 

 
 
 
 
 
 
 
 
 
 
 
 
 
 
Question  10  suggested  amending  Article  10  by  removing  the  requirement  to  'approve'  the 
registration systems and replace it by a requirement to 'verify' the accuracy and timeliness of 
recording the data (and to carry out random checks for this purpose, as required in the second 
paragraph  of  Article  10),  while  retaining  the  principle  of  self-declaration  of  passenger 
information for voyages longer than 20 nm. The majority of Member States agreed with the 
proposal, with only 2 Member States expressing concerns (DK and one MS) and BE declaring 
no opinion. 

10. Approval of registration systems  Answers 

Yes 

No 

No opinion 

16 

2 

1 

The majority of Member States (15 in total) agreed with the proposal to include information 
on nationality in Article 5(1) on the basis of self-declaration and to improve the effectiveness 
of  search  and  rescue  operations.  Two  Member  States  expressed  no  opinion  on  the  proposal 
(BE an one MS) and two MS opposed, DK on the basis of potential additional administrative 
burden and DE by questioning the improvement that this could potentially bring in the search 
and rescue operations. 

11. Nationality 

Answers 

Yes 

No 

No opinion 

15 

2 

2 

Finally,  in  question  12  Member  States  had  the  opportunity  to  raise  issues  that  were  not 
addressed  in  the  proposal  and  make  other  suggestions  for  removing  outdated  references, 
ambiguities or overlaps in the Directive. Input to that respect was provided by IT, PL and PT 
and was examined by the Commission as appropriate. 

55 

 
 
 
 
 
 
 
 
 
 
 
 
 
 
B. Directive 1999/35/EC on a system of mandatory surveys for the safe operation of regular 
ro-ro ferry and high-speed passenger craft services: 

Question 1 contained the proposal for the vessels operating domestically. The main aim was 
to transfer the requirements of Directive 1999/35/EC to Directive 2009/45/EC, clarifying that 
one of the two annual ro-pax surveys (namely the specific 'in-port' survey according to Annex 
III  Directive  1999/35/EC)  can  be  carried  out  as  part  of  the  annual  flag  State  survey,  under 
certain circumstances. The majority of Member States agreed with the proposed combination 
of  the  surveys  that  are  contained  in  the  two  Directives,  however,  due  to  the  different  scope 
and difficulties that may arise in the implementation of this merger, 4 Member States (DK, IE 
and  2  MS)  expressed  their  concern  and  BE  and  DE  stated  they  have  no  opinion  on  the 
proposal. 

1. Vessels operating domestically  

Answers 

Yes 

No 

No opinion 

13 

4 

2 

Question 2 contained the proposal for the vessels subject to port State control. The main aim 
was to transfer the requirements of Directive 1999/35/EC to Directive 2009/16/EC, clarifying 
that both annual surveys shall be carried out as expanded port State control inspections. This 
may  be  the  case  only  when  ensuring  that  these  vessels  qualify  for  an  expanded  port  State 
control  inspection  when  they  commence  a  service  ('initial'  survey)  and  thereafter  twice  per 
year (i.e. altering the ship risk profile and priority for these vessels in the annexes to Directive 
2009/16/EC). A similar input in terms of the overall statistics was received, with almost the 
same Member States disagreeing with the proposed merger (DK, IE, ES and a MS). DE and 
one MS provided no opinion. 

2. Vessels subject to port State 
control 

Answers 

Yes 

No 

No opinion 

13 

4 

2 

Question 3 addressed the issue of vessels operating between an EU MS and a  third country 
where the flag of the vessel is the same as that of the MS. Given that these vessels fall neither 
within  the  scope  of  PSC  nor  Directive  2009/45/EC,  the  questionnaire  proposed  two 
alternatives. The first was to retain the requirements in Directive 1999/35/EC but clarify that 

56 

 
 
 
 
 
 
 
 
 
 
one of the two annual ro-pax surveys can be carried out as part of the annual flag State survey 
under  the  same  conditions  of  those  indicated  for  vessels  operating  domestically.  This 
approach was supported by 7 Member States (IE, IT, LT, LV, NL, PL and one MS).  As an 
alternative, the second proposal was to transfer the requirements to Directive 2009/21/EC (the 
Flag State Directive).This approach would allow repealing Directive 1999/35/EC. The second 
alternative  was  preferred  by  8  Member  States  (CY,  DE,  ES,  FI,  FR,  PT,  SE,  MT),  while  4 
Member States expressed no opinion (BE, DE, UK and one MS). 

3. Vessels operating between an EU MS and a third 
country where the flag of the vessel is the same as that 
of the MS 

Answers 

Keep the requirements in Directive 
1999/35/EC 

Transfer the requirements to Directive 
2009/21/EC 

Other alternative 

No opinion 

7 

8 

0 

4 

Question  4  tackled  the  issue  of  the  objective  behind  Article  8  of  Directive  1999/35/EC  that 
indicates  that  every  12-month  period  a  specific  survey  and  a  survey  during  regular  service 
must be carried out by host States. Although the aim was to ensure that these two inspections 
are carried out with a certain time lag, i.e. 5-6 months, this has not always been the case  in 
practice.  Therefore,  it  was  proposed  to  clarify  that  the  two  annual  inspections  should  take 
place  at  regular,  approximately  six  monthly  intervals.  The  majority  of  Member  States 
supported  this  proposal  as  a  positive  clarification.  DE  provided  no  opinion  and  4  Member 
States (BE, DK, ES, IE) expressed some concerns regarding vessels at seasonal service. 

4. Regularity of inspections 

Answers 

Yes 

No 

No opinion 

14 

4 

1 

There was an agreement among Member States on the proposed replacement of the concept of 
the host State by the port State (for vessels subject to port State control) or by the flag State 
(for  vessels  not  subject  to  port  State  control).  Directive  1999/35/EC  in  Article  2(k)  defines 
host State, however, this concept was introduced by this Directive to facilitate the cooperation 
with non-EU Member States prior to the 2004 EU enlargement and is no longer relevant in 

57 

 
 
 
 
 
 
 
 
 
 
 
practice.  Only  IE  disagreed,  considering  that  it  is  important  to  be  kept  for  the  purposes  of 
Directive 1999/35/EC. DE and ES were of no opinion. 

5. Outdated concept of host State 

Answers 

Yes 

No 

No opinion 

16 

1 

2 

Most  Member  State  agreed  with  the  proposal  of  question  6,  to  remove  the  requirement  of 
Article  11  to  carry  out  joint  surveys  by  default  and  to  replace  by  a  possibility  to  do  so,  i.e. 
when  requested,  port  State,  flag  State  or  a  third-country  of  destination  (as  appropriate).  DE 
did  not  provide  an  opinion  on  the  proposal  and  two  Member  States  disagreed  (IE  and  one 
MS). 

6. Joint surveys 

Answers 

Yes 

No 

No opinion 

16 

2 

1 

Directive 1999/35/EC refers to 'surveys' rather than 'inspections'. To ensure the correct use of 
terminology, question 7 proposed replacing the term 'survey' by 'inspection' when referring to 
specific  ro-pax  surveys  as  currently  provided  for  in  Directive  1999/35/EC.  The  majority  of 
Member  States  agreed  with  this  proposal  and  only  two  Member  States  (DE  and  one  MS) 
abstained from providing an opinion on the suggested amendment. 

7. Survey vs inspection 

Answers 

Yes 

No 

No opinion 

17 

0 

2 

There was the same level of positive feedback on the proposed amendment of Annex IV of 
Directive 1999/35/EC, which refers to 'indicative guidelines'. Article 8 refers to Annex IV as a 
mandatory part of the 'in-service' surveys and therefore cannot be considered to be indicative. 
For the sake of legal clarity, it was proposed to remove the reference to 'indicative guidelines' 

58 

 
 
 
 
 
 
 
 
 
 
 
 
 
 
from Annex IV without any replacement. Only DE and one MS expressed no opinion on the 
proposal. 

8a. Indicative guidelines 

Answers 

Yes 

No 

No opinion 

17 

0 

2 

On the second part of question 8, given that Annex IV of Directive 1999/35/EC also refers to 
'unscheduled'  surveys  and  the  Directive  provides  for  2  annual  inspections  carried  out  in 
regular  intervals,  the  notion  of  'unscheduled'  surveys  shall  be  interpreted  as  'unannounced' 
surveys.  Several  alternatives  were  proposed  to  that  respect,  with  the  majority  of  Member 
States being positive in retaining the possibility of 'unannounced' inspections. Two Member 
States  underlined  the  difficulty  of  organising  'unscheduled'  surveys  that  are  indeed 
unannounced.  

From  the  alternatives  that  were  proposed,  IE,  LT  and  SE  preferred  to  replace  the  notion  of 
'unscheduled' surveys in Annex IV by 'unannounced' surveys, de facto making these surveys 
always unannounced. DK, ES, NL and one MS selected to remove the notion of 'unscheduled' 
surveys from Annex IV without any replacement and the majority of the MS (BE, CY, FI, FR, 
IT,  MT,  PL,  PT,  RO,  UK)  preferred  the  alternative  to  remove  the  notion  of  'unscheduled' 
surveys  from  Annex  IV  and  replacing  it  by  a  requirement  that  such  surveys  shall  be 
occasionally  carried  out  in  an  unannounced  manner.  DE  expressed  no  opinion  on  the 
alternatives  proposed  and  LV  suggested  an  alternative  wording  for  the  third  proposal 
emphasising  that  such  surveys  'may  (could)'  be  occasionally  carried  out  in  an  unannounced 
manner, instead of 'should'. 

8b. Unscheduled surveys 

Answers 

To replace the notion of 'unscheduled' surveys in Annex IV by 
'unannounced' surveys 

To remove the notion of 'unscheduled' surveys from Annex IV 
without any replacement 

To remove the notion of 'unscheduled' surveys from Annex IV 
and replacing it by a requirement that such surveys shall be 
occasionally carried out in an unannounced manner 

Other alternative 

No opinion 

3 

4 

10 

1 

1 

59 

 
 
 
 
 
 
 
 
 
 
 
 
As regards the 'in-service' survey (i.e. a survey during a regular service), as defined in Article 
8, the wording of the Directive leaves certain ambiguity as regards whether this survey should 
be carried out when the ship is sailing or whether this survey can be carried out in port. To 
remove  this  ambiguity  question  9  contained  the  proposal  to  clarify  that  'in-service'  surveys 
shall be carried out in accordance with Annex IV and, in addition, must include  items from 
Annex  I  and  III  selected  by  the  national  administration  to  ensure  that  the  ferry  or  craft 
continues to fulfil all the necessary requirements for safe operation. There was wide support 
on this clarification by 16 Member States, while PL proposed an alternative wording and DE 
expressed no opinion. DK disagreed with the proposed formulation and expressed preference 
towards maintaining the current wording. 

9. Content of 'in-service' survey 

Answers 

Yes 

No 

No 
opinion 

16 

2 

1 

Articles 4 and 5 of Directive 1999/35/EC provide for specific requirements related to 'initial 
verifications'  in  relation  to  vessels,  companies  and  flag  States.  Given  that  these  provisions 
have been either superseded by other legislation (i.e. accident investigation) or the proposed 
alignment  with  the  port/flag  State  responsibilities  and  are  already  embedded  in  the  initial 
surveys mandated by Article 6, it was proposed to remove these two Articles in their entirety. 
A  total  of  16  Member  States  agreed  with  the  intended  simplification  with  FR  and  IE 
expressing their disagreement and DE having no opinion on the proposal. 

10. Initial verifications 

Answers 

Yes 

No 

No opinion 

16 

2 

1 

Finally,  in  question  11  Member  States  had  the  opportunity  to  raise  issues  that  were  not 
addressed  in  the  proposal  and  make  other  suggestions  for  removing  outdated  references, 
ambiguities or overlaps in the Directive. Input to that respect was provided by DK, regarding 
more  meetings  on  the  NSW,  IE  on  ISPS  and  Regulation  725/2004/EC  and  PL  with  the 
provision of a list of repealed legislation. All suggestions were examined by the Commission 
as appropriate. DE reserved its position on the possibility to provide feedback later on some 
of the issues. 

60 

 
 
 
 
 
 
 
 
 
 
C. Directive 2009/45/EC on safety rules and standards for passenger ships: 

The  first  part  of  the  questionnaire  for  Directive  2009/45/EC  focused  on  the  clarification, 
alignment and simplification of a number of definitions that appear in the Directive and have 
been considered of ambiguous nature, thus also complicating the scope of its application.  

In question 1 it was proposed to clarify in Article 3 (2) that Directive 2009/45/EC does not 
apply to 'offshore supply vessels' as defined in the IMO OSV Guidelines, 2006, as amended. 
The majority of Member States agreed with the proposed clarification while 5 Member States 
(DK, FR, IE, NL and UK) opposed to the proposal by either suggesting alternative wording or 
underlining potential unintended implications. 

1. Offshore supply vessels 

Answers 

Yes 

No 

No 
opinion 

14 

5 

0 

The first part of question 2 aimed at the clarification of the definition of traditional ships. In 
Article 3(2a)v, Directive 2009/45/EC excludes 'original, and individual replicas of, historical 
passenger  ships  designed  before  1965,  build  predominantly  with  the  original  materials'.  On 
the  other  hand, Directive  2002/59/EC  also  includes  a  definition  of  traditional  ships.  For  the 
sake of consistency  and legal clarity, it was proposed to  align these  two definitions  and the 
questionnaire proposed two alternative wordings to that respect.  

The views among the MS were split with 7 Member States (CY, FR, MT, NL, PL, SE and one 
MS) opting for the proposed complete alignment with the definition of Directive 2002/59/EC, 
while 8 Member States (BE, ES, FI, IT, LT, LV, PT and UK) preferred the alignment while 
retaining  the  age  and  the  materials.  Two  Member  States  provided  no  opinion  (DE  and  one 
MS)  while  DK  opposed  to  the  necessity  of  changing  the  current  text  and  IE  proposed  an 
alternative. 

2a. Traditional ships 

Answers 

Define traditional ships according to Directive 2002/59/EC 

Define traditional ships according to Directive 2002/59/EC and retain the 
age (designed before 1965) and the materials (built predominantly with the 
original materials) criteria 

Other alternative 

No opinion 

61 

  7 

  8 

2 

2 

 
 
 
 
 
 
 
 
The  second  part  of  question  2  focused  on  the  need  to  clarify  the  coverage  of  rig-sailing 
passenger ships. Although the Directive explicitly excludes passenger ships not propelled by 
mechanical means from its scope (Article 3(2a)ii), these ships usually have an auxiliary diesel 
engine  capable  of  propelling  the  ship  if  needed.  It  was  therefore  proposed  to  clarify  that 
Directive  2009/45/EC  does  not  apply  to  'sailing  ships',  defined  as  'ships  primarily propelled 
by sails and usually fitted with mechanical propulsion for auxiliary and emergency purposes'. 
The  majority  expressed  their  agreement  with  the  envisaged  clarification  and  proposed 
alternative wordings towards achieving more clarity, especially with respect to the auxiliary 
propulsion  element  of  the  definition.  DE,  DK  and  IE  expressed  their  disagreement  with  the 
suggested definition and BE provided no opinion in this issue. 

2b. Sailing ships 

Answers 

Yes 

No 

No opinion 

15 

3 

1 

The proposal also aims in clarifying Articles 3(2a)vi and 3(2b)ii (i.e. ships outside its scope), 
where  Directive  2009/45/EC  refers  to  pleasure  'yachts'  and  pleasure  'craft'  with  neither  of 
them being defined in the Directive. It is therefore proposed to define that 'pleasure yachts and 
craft' mean 'all kinds of ships or craft intended for sports and leisure purposes, regardless of 
the means of propulsion, unless they carry more than 12 passengers' for commercial purposes. 
The  majority  of  Member  States  supported  this  proposal  with  some  alternatives  wordings 
being suggested for clarity purposes. 3 Member States (IE, MT and UK) disagreed with the 
proposed text. 

3. Pleasure yachts/craft 

Answers 

Yes 

No 

No opinion   

16 

3 

0 

Question  4  aimed  to  clarify  the  scope  of  the  Directive  by  addressing  the  issue  of  tenders, 
which, as cruise ships have increased in size, they have also increased in some cases to over 
300  passengers.  It  was  proposed  to  clarify  that  tenders  are  excluded  from  the  scope  of 
Directive  and  to  define  'tenders'  as  'ship-carried  boats  used  for  transferring  more  than  12 
passengers from a stationary passenger ship to shore and back, certified either as lifeboats or 

62 

 
 
 
 
 
 
 
 
 
 
passenger ships of like size and service to the tender'. The majority of Member States agreed 
with  the  above  formulation,  with  15  expressing  their  support  and  proposing  potential 
alternative  wordings  that  could  be  followed.  MT  did  not  provide  with  an  opinion  while  3 
Member States (DE, DK, IE) expressed their disagreement. 

4. Tenders 

Answers 

Yes 

No 

No opinion 

15 

3 

1 

According  to  Article  3,  Directive  2009/45/EC  does  not  apply  to  'vessels  constructed  in 
material  other  than  steel  or  equivalent'.  Although  the  main  body  of  the  Directive  does  not 
define  what  such  'equivalency'  stands  for,  in  Chapter  II-2  of  Annex  I,  the  Directive  defines 
requirements  for  cases  'where  any  part  of  the  structure is  of  aluminium  alloy,  the  following 
shall apply'. Having acknowledged that the corresponding definition in Chapter II-2 of Annex 
I  may  create  an  impression  of  ambiguity  as  regards  the  coverage  of  non-insulated  (or  not 
sufficiently insulated) aluminium built ships and noting that not all Member States apply the 
Directive  in  the  same  manner;  it  was  proposed  to  clarify  and  amend  the  definition  of 
equivalency, while allowing sufficient phase-in period for the aluminium ships currently not 
certified  under  the  Directive.  The  majority  of  Member  States  agreed  with  the  proposed 
clarification  and  welcomed  the  amendment,  proposing  in  parallel  some  alterations  and 
alternative wordings. One Member State provided no opinion and FR, IT and LV disagreed 
with the proposed formulation; FR underlining the impossibility to upgrade existing vessels to 
the existing requirements of the Directive. 

5a. Aluminium built ships 

Answers 

Yes 

No 

No opinion 

15 

3 

1 

63 

 
 
 
 
 
 
 
 
 
 
In  order  to achieve  the maximum level of clarity, the questionnaire  was open to  input from 
Member States regarding circumstances in which the Directive's fire insulation requirements 
were  found  impracticable  or  ambiguous.  The  questionnaire  was  also  open  to  proposals  for 
their  clarification.  6  Member  States  (ES,  FR,  IE,  IT,  SE  and  UK)  responded  positively  and 
provided additional information and suggestions for improvement. PT and two other Member 
States did not provide an opinion on this issue. 

5b. Aluminium built ships – identified 
ambiguities 

Answers 

Yes 

No 

No opinion 

6 

10 

3 

Regarding the definition of the sea areas C and D, which is currently based on three different 
parameters,  the  proposal  suggested  removing  the  redundant  or  overlapping  elements.  These 
elements are the reference to  'where  the shipwrecked persons can  land' and the reference to 
the  'place  of  refuge'.  The  majority  of  Member  States,  13  in  total,  agreed  with  the  proposed 
simplification,  however  6  Member  States  disagreed  (BE,  DE,  PL,  SE,  UK  and  one  MS). 
There  was  an  agreement  among  Member  States  to  remove  the  reference  to  shipwrecked 
persons,  however,  PL,  SE  and  UK  opposed  the  removal  of  the  reference  to  the  places  of 
refuge and UK also proposed the removal of the reference to significant wave height. 

6a. Definition of sea areas 

Answers 

Yes 

No 

No opinion 

13 

6 

0 

64 

 
 
 
 
 
 
 
 
 
 
The  questionnaire  also  addressed  the  issue  of  the  potential  impact  of  the  proposed 
simplification  on  the  current  delimitations  of  sea  areas  with  7  Member  States  replying 
positively (DE, NL, PL, PT, SE, UK and one MS), 9 Member States negatively (BE, CY, DK, 
ES,  FI,  FR,  IE,  IT  and  LV)  and  3  Member  States  (MT,  LT  and  one  MS)  expressing  no 
opinion. Specific examples were provided as feedback to that respect. 

6b. Impact on sea areas demarcation 

Answers 

Yes 

No 

No opinion 

7 

9 

3 

On  ships  below  24  m  in  length  the  majority  of  Member  States  agreed  with  the  proposal  to 
exclude them from the scope of Directive 2009/45/EC. There was disagreement from DE, IE 
and IT who preferred maintaining the current situation. 

7. Ships below 24 m in length 

Answers 

Yes 

No 

No opinion   

16 

3 

0 

The majority of Member States, 17 in total, agreed with the need to reformat Annex I of the 
Directive  that  contains  the  currently  applicable  technical  requirements,  acknowledging  that 
with  the  adoption  of  SOLAS  2009,  the  numbering  and  the  format  of  the  corresponding 
Regulations  have  significantly  changed.  The  UK  did  not  provide  an  opinion  regarding  the 
present  proposal  while  DE  disagreed  on  the  ground  that  there  are  deviations  between  the 
requirements in the Directive and those to be found in SOLAS. 

8. Format of Annex I 

Answers 

Yes 

No 

No opinion 

17 

1 

1 

65 

 
 
 
 
 
 
 
 
 
 
 
 
 
 
On  the  reporting  of  exemptions/equivalencies  etc.,  Directive  2009/45/EC  (and  in  principle 
also Directive 98/41/EC) define a sui generis notification procedure that is rather lengthy. In 
addition, there is no database where such measures would be recorded and made available to 
all  Member  States  and  operators  for  their  consideration.  Therefore,  it  was  proposed  to 
mandate  the  Commission  to  set  up  and  maintain  a  database  (possibly  through  CIRCA) 
containing the notifications and information provided by Member States under Article 9 (1, 2 
or 3); indicate that such database would serve the purpose of informing other Member States 
as  foreseen  in  Article  9  (4);  and  specify  that  condition  of  access  to  the  database  shall  be 
decided  with  the  assistance  of  the  Committee  (COSS).  MT  disagreed  due  to  the  potential 
additional burden that this would impose and UK, LT and one MS expressed no opinion on 
the proposal. However, the majority of Member States welcomed this proposal.  

9. Notification tools 

Answers 

Yes 

No 

No opinion 

15 

1 

3 

Finally,  in  question  10  Member  States  had  the  opportunity  to  raise  issues  that  were  not 
addressed  in  the  proposal  and  make  other  suggestions  for  removing  outdated  references, 
ambiguities  or  overlaps  in  the  Directive. Input to  that  respect  was  provided  by  DK,  FI,  FR, 
NL, UK and one MS, all of which were taken into consideration as relevant. 

Norway 

Replies on the questionnaire were also provided by Norway and can be briefly summarised as 
follows, according to the proposed amendments for each Directive.  

Regarding  Directive  98/41/EC,  there  was  general  support  to  the  proposals,  especially 
regarding the scope of the Directive (question 1)  and the clarification of the definitions  and 
references to 'protected sea area' (question 2), 'sea area C'  (question 3) and the measurement 
of  the  distance  from  the  point  of  departure  (question  4).  In  the  same  lines  there  was  a 
suggestion to remove the reference to 'including in its archipelagic sea areas' from Article 9(3) 
due to the potential of causing inconsistencies.  

There  was  disagreement  on  questions  5  -  6  and  the  proposal  to  replace  the  reference  to 
'company's passenger registrar' by a reference to the NSW (both for the number of passengers 
and  the  passenger  lists),  on  the  ground  that  the  shore  based  system  currently  in  place  is 
functioning well, especially on short crossings. They also highlighted the potential impact on 
small operators. 

NO expressed its support on the suggestions regarding the time the lists of passengers need to 
be communicated (question 7). There was also an agreement with respect to the time period 

66 

 
 
 
 
 
 
the personal data is permitted to be kept and the circumstances under which they should be 
made  available  to  the  competent  authorities  (question  8).  Regarding  the  passenger  registrar, 
NO  expressed  no  opinion  on  the  proposal  of  question  9  (replacing  passenger  registrar  by 
designated  person  ashore),  but  agreed  with  the  suggestion  to  remove  the  requirement  to 
approve  the  passenger  registration  systems  by  a  verification  of  accuracy  and  timeliness  of 
recording the data. The same applies with respect of the proposal of introducing nationality as 
mandatory information to be registered for persons on board. 

Regarding  Directive  1999/35/EC,  there  was  an  overall  support  and  agreement  with  the 
suggested proposals. More specifically, regarding the potential transfer of the requirements of 
Directive 1999/35/EC, for vessels operating domestically, to Directive 2009/45/EC (question 
1)  and  for  vessels  subject  to  Port  State  Control,  to  Directive  2009/16/EC  (question  2),  NO 
expressed  their  agreement.  For  the  vessels  operating  between  EU  MS,  NO  selected  the 
alternative of keeping the requirements in Directive 1999/35/EC (question 3). 

In  general,  there  was  an  agreement  regarding  the  proposals  on  the  interval  between  the 
surveys (question 4), the abolition of the host state concept (question 5), the removal of the 
requirement  of  carrying  out  joint  inspections  and  replacement  by  a  possibility  to  do  so 
(question  6)  and  the  replacement  of  the  reference  to  surveys,  by  a  reference  to  inspections 
(question 7). On the discussion and relevant proposals of question 8, which covers the issue of 
the 'indicative guidelines' and 'unscheduled surveys' of Annex IV, on the former NO agreed 
with proposal to remove the reference to the guidelines without any replacement, while on the 
surveys they proposed the alternative to replace the wording should with "inspections" rather 
than  "surveys".  Finally,  on  question  9,  they  agreed  with  the  clarification  on  'in-service 
surveys'. 

With  respect  to  Directive  2009/45/EC,  NO  disagreed  with  the  proposal  regarding  the 
clarification of the offshore service vessels and underlined that the IMO discussions need to 
be taken into consideration  (question 1).  On question  2 and traditional ships they supported 
the  alignment  of  the  definition  with  that  of  Directive  2002/59/EC,  without  including  any 
additional  elements  in  that  definition.    Support  was  also  expressed  with  respect  to  the 
proposals on sailing ships (question 3) and pleasure crafts (question 4). On aluminium ships, 
NO agreed with the amendments that were proposed, however, acknowledged that ships that 
have been built according to different rules than those under the Directive will have difficulty 
to  comply  with  the  proposed  amendment  (question  5).  No  specific  circumstances  of 
impracticability were identified by NO. There was also a positive input on the clarification of 
the definition of sea areas (question 6), the exclusion of ships below 24m (question 7) and the 
reporting of the exemptions (question 9), while they expressed no opinion on the reformatting 
of the Annex (question 8). 

67 

 
 
 
 
 
Annex 2: Summary of the PSS Expert Group meeting on the simplification of EU 
passenger ship safety legislation 

BRUSSELS, 2 February 2016 

1.  Introduction 

Following  the  welcome,  and  approval  of  the  agenda,  the  chair  (Ms.  C.  Berg,  Head  of 
Maritime Safety Unit, DG MOVE) briefly presented the actions to be taken in the following 
months  as  a  follow-up  to  the  REFIT  fitness  check  on  EU  passenger  ship  safety  legislation. 
The intention is to finalise the legal proposals for the simplification of the PSS legislation as 
soon  as  possible,  in  order  for  the  negotiations  to  begin  still  under  the  NL  presidency. 
Afterwards,  stakeholders  will  be  invited  to  express  their  interest  in  participating  in  the 
Passenger  Ship  Safety  Expert  Working  Group  as  observers.  The  first  joint  meeting  of  the 
expert group with observers is foreseen to take place after summer (September/October 2016).  

The Chair recalled that the main objectives of the meeting was to: (1) present the results of the 
questionnaire on the simplification of the EU passenger ship safety legislation; (2) prepare the 
proposals  for  the  EU  passenger  ship  safety  legislation  (with  focus  on  key  measures 
highlighted in the previous point); and (3) discuss next steps. 

2.  Results  of  the  questionnaire  on  the  simplification  of  the  EU  passenger  ship  safety 

legislation 

The  Chair  underlined  that  the  timely  submission  of  the  replies  and  comments  was  highly 
appreciated  and  that  there  had  been  a  good  response  both  in  terms  of  the  number  of  the 
administrations  that  had  replied  and  in  terms  of  the  comments  received.  Regarding  the 
statistics presented (i.e. how many Member States agreed, disagreed or expressed no opinion 
on a given proposal), it was highlighted that the results were automatically generated by the 
system, at face value (i.e. conditional replies not taken into account, no weighting, etc.).  

3.  Preparation  of  the  forthcoming  proposals  for  the  EU  passenger  ship  safety 

legislation  

The Chair recalled that the main aim of the meeting was to get further insights in some of the 
issues  raised  by  Member  States  in  the  questionnaire  and  to  discuss  alternative  wordings 
proposed.  It  was  however  not  intended  to  start  negotiating  on  the  envisaged  measures. 
Following issues were discussed in more detail: 

A.  Directive  98/41/EC  on  the  registration  of  persons  sailing  on  board  passenger  ships 
operating to or from ports of the Member States of the Community 

Some Member States questioned using National Single Window (NSW) as the (only) tool to 
communicate the number of persons on board to the system accessible to search and rescue 
authorities.  The  Chair  recalled  the  obligation  for  all  Member  States  to  have  the  NSW 
operating already since June 2015. Notwithstanding the delays in its implementation, by the 

68 

 
 
 
 
 
 
time the proposed amendments will enter into force (possibly 2019/2020), the system will be 
fully operational. 

The discussion then focused on using Automatic Identification System as an alternative tool 
for communicating the number of persons on board, as proposed by one Member State during 
the consultation and as noted in the REFIT fitness check conclusions. The advantage of this 
option  would  be  a  minimal  investment  with  significant  safety  benefits.  Higher  transparency 
on the availability of the number of persons on board was considered to be an important side 
benefit. Moreover, an internet connection is not needed and passenger vessels already have an 
obligation  to  carry  an AIS  device on  board  irrespective  of  their  size (unless  Member  States 
have used the possibility to exempt them from such obligation).  

From the technical perspective, it was clarified that there is a space for the number of persons 
on board in the AIS message. Experts then exchanged experience with already using AIS for 
such purposes, the prime example cited by the UK being very short voyages of a few minutes 
on the River Thames.  

A number of experts supported the proposal and welcomed having an alternative to the NSW, 
which  is  especially  important  for  small  operators.  Comments  were  made  concerning  the 
functioning of AIS as a pre-programmed device and the fact that old devices may need to be 
upgraded  for  such  purpose.  The  accuracy  and  reliability  of  the  information  provided  by  the 
master  was  also  questioned,  however,  albeit  in  this  respect  there  would  be  no  change 
compared to status quo.  

Some  experts  also  highlighted  the  fact  that  Member  States  have  a  possibility  to  grant 
exemption from the obligation to carry AIS to passenger ships of under 300 GT (Annex II/I-2 
of  Directive  2002/59/EC).  These  Member  States  would  need  to  revisit  and  justify  their 
decision accordingly unless exemptions are in one way or another retained. However, on the 
basis of experience with using AIS for this purpose (as a widely accessible and non-expensive 
tool), it was questioned whether such exemptions remain justified.  

Finally, in response to several comments regarding the scope of the Directive’s applications 
(e.g.  fjords  or  archipelago),  the  Chair  recalled  ancillary  clarifications  and  the  fact  that  the 
inner limit of sea area D remains within the discretion of Member States to define.  

B.  Directive  1999/35/EC  on  a  system  of  mandatory  surveys  for  the  safe  operation  of 
regular ro-ro ferry and high-speed passenger craft services 

The  Chair  underlined  that  the  aim  is  to  simplify  the  current  requirements  and  to  adjust  the 
inspection  regime  according  to  the  implementation  experience.  Specific  questions  were 
addressed to experts, namely regarding the possibility for joint inspections and carrying out 'in 
service' inspections at sea.  

Some experts highlighted that while they in principle agree with the simplification approach, 
more  discussion  would  be  needed  on  the  more  detailed,  operational  aspects  of  putting  the 
suggested  amendments  into  place  and  there  were  calls  for  a  dedicated  workshop  to  be 
organised  with  the  experts  concerned  (inspectors,  surveyors).  This  would  allow  achieving  a 
common interpretation of the provisions. The Chair underlined that such a workshop could be 
organised with the assistance of EMSA once the simplification proposals are finalised and put 
forward  by  the  Commission  (as  part  of  the  implementation  plan  and  the  preparation  of  the 
necessary implementing acts). 

69 

 
 
Germany made an information point and informed the Commission that while at the time of 
submitting  the  replies  to  the  targeted  questionnaire  they  were  not  yet  able  to  respond  to 
questions  related  to  Directive  1999/35/EC,  they  support  the  proposed  measures.  More 
specifically,  Germany  supports  removing  the  notion  of  'unscheduled'  inspections  from  the 
Title of Annex IV without any replacement.  

Finally,  experts  underlined  the  difference  between  Directives  2009/45/EC  and  1999/35/EC 
and consequently the need for an independent inspection under Directive 2009/45/EC, due to 
the fact that it may be delegated to recognised organisations. In such cases coordination with 
the recognised organisations would be required.  

C. Directive 2009/45/EC on safety rules and standards for passenger ships 

EMSA presented the planning for simplifying the Annex (in view of its adoption as soon as 
the  amended  Directive  enters  into  force).  The  Chair  reminded  experts  that  during  the  last 
meeting of the Committee (COSS), there was an agreement on the amendment of the existing 
Annex, which is currently under the 3 month scrutiny period and will enter in force in 2018. 
The discussion followed on the timing of the proposed changes and the fact that the simplified 
Annex  should  in  principle  be  put  forward  in  the  form  of  a  Regulation  to  reduce  the 
transposition  burden  for  national  administrations.  In  addition,  transitional  period  would  be 
foreseen. Several issues were discussed in detail: 

a) Sea areas simplification  

All  experts  agreed  that  the  reference  to  'where  shipwrecked  persons  can  land'  should  be 
removed from the definition of sea areas C and D. Regarding the distance to a place of refuge, 
where this criterion is used experts called for retaining it. It was noted that the notion of place 
of  refuge  should  be  reflected  on  a  case-by-case  basis  for  each  ship  when 
the 
operational/navigation  elements  are decided  upon.  A  more  general  discussion  took  place  on 
the  other  criteria  such  as  the  significant  wave  height  (not  included  in  the  simplification 
proposals) where divergent opinions have been expressed on its use and added value. 

b) Specific ship types 

On  the  proposal  to  clarify  the  definition  of  traditional  ships,  some  experts  emphasised  the 
importance  of  clarifying  the  definition.  Moreover,  regarding  sailing  vessels,  a  preference 
towards  their  exclusion  emerged  during  the  meeting.  Clarification  was  asked  regarding  the 
pleasure  craft  definition  and  divergent  views  expressed  towards  excluding  tenders  from  the 
scope of the Directive. 

Regarding aluminium vessels, the issue was addressed by some of the experts and references 
were  made  to  the  replies  provided  in  the  questionnaire.  The  Chair  recalled  that  the  current 
safety level cannot be comprised, a transitional period should be provided and the technical 
requirements clarified, taking the consultation feedback as a starting point.  

c) Other issues  

Another  issue  of  safety  concern  was  raised  with  respect  to  the  current  wording  of  the 
Directive that may be ambiguous when cargo ships are converted into passenger vessels (and 
should  therefore  fulfil  the  requirements  for  a  "new"  passenger  vessel).  In  addition,  the 
attention  of  the  Commission  was  drawn  to  a  possibly  incorrect  wording  in  the  Annex 
concerning lifesaving appliances. 

70 

 
 
5. 

Next steps  

The  Chair  summarised  and  presented  the  next  steps.  Once  the  simplification  proposals  are 
finalised and adopted by the Commission, the work on the new format of Annex to Directive 
2009/45/EC  will  start  immediately  (including  via  a  correspondence  group)  and  a  dedicated 
workshop will be organised by EMSA. Furthermore, the PSS Expert Group will be enlarged 
to  observers  (a  call  for  the  expression  of  interest  should  be  launched  still  this  spring  so  the 
next  meeting  of  the  PSS  Expert  Group  planned  after  summer  can  already  take  place  in  the 
enlarged setting). 

In  the  second  phase  of  the  REFIT  fitness  check  follow-up  and  as  announced  in  the 
Commission report (COM(2015)508), preparatory work will start on developing guidelines or 
a code for small vessels, based on functional requirements. Finally, depending on the results 
of the negotiation at international level concerning the damage stability requirements, a study 
will be launched to support the review of Directive 2003/25/EC. 

6. 

AOB 

On  the  question  regarding  the  form  of  the  legislative  proposals,  i.e  whether  all  revised 
Directives will be amended in one text or separately, the Chair replied that no final decision 
has been taken in that respect, however, the intention is to avoid having one single amending 
proposal,  because  this  would  lead  to  a  massive  technical  text  that  would  be  impossible  to 
handle and would not be in line with the principles of clear legal drafting. 

Finally,  a  request  was  addressed  to  the  Commission  whether  all  individual  replies  to  the 
targeted questionnaire can be distributed among the PSS Expert Group. The Chair underlined 
that comments provided by the participants of the questionnaire will be reflected in the Staff 
Working  Document  accompanying  the  simplification  proposals  and  recalled  the  specific 
privacy  statement  for  the  targeted  consultation,  according  to  which  it  was  not  envisaged  to 
publish the received contributions on the internet in their entirety. Member States could opt 
for their contribution to be referred in an anonymous form. 

71 

 
 
 
 
 
Annex 3: Summary of the workshop on the simplification of EU passenger ship safety 
legislation 

BRUSSELS, 2 February 2016 

Represented bodies:  CLIA,  Sea  Europe,  European  Boating  Industry  (EBI),  IACS,  ECSA, 

Interferry, SOS Catastrophes 

Following  the  completion  of  the  REFIT  exercise  and  to  pave  the  way  for  finalising  the 
simplification  proposals,  the  Commission  in  the  framework  of  the  targeted  consultation 
organised  a  stakeholder  workshop.  The  basis  for  the  discussion  was  the  Roadmap  'REFIT 
legislative review simplifying the EU passenger ship  safety legislation' and the forthcoming 
simplification measures. 

The  meeting  was  opened  and  chaired  by  Ms  C.  Berg,  Head  of  Unit  of  DG  MOVE  D.2 
Maritime  Safety,  who  explained  the  context  of  the  REFIT  Fitness  Check  in  the  area  of 
passenger  ship  safety.  The  Chair  presented  the  overall  framework  and  objectives  of  EU 
passenger  ship  safety  legislation,  highlighting  the  differences  between  regulation  at 
international and EU level. Subsequently, the Chair briefly presented the main results of the 
fitness  check  and  follow-up  actions  to  be  carried  out  in  two  phases.  In  the  first  phase,  a 
number of simplification proposals will be put forward by the Commission, the preparation of 
which is the topic of this meeting. In the next phase, further actions will concern the review of 
Directive  2003/25/EC  (the  Stockholm  agreement)  and  the  development  of  the  Small  Craft 
Code/Guidelines.  For  this  purpose,  the  current  Passenger  Ship  Safety  Expert  Group  will  be 
enlarged  to  observers  and  all  stakeholders  will  be  invited  to  express  their  interest  (call 
forthcoming this spring). 

The general overview of the Fitness Check was followed by a detailed discussion on some of 
the  envisaged  measures,  based  on  the  questions  raised  by  the  stakeholders.  The  Chair  also 
invited stakeholders to provide their feedback in writing via a response form on the published 
roadmap (to date, no feedback has been received).  

Concrete issues raised by the participants:  

A. Directive 2009/45/EC on safety rules and standards for passenger ships 

ECSA enquired on the issue of the vessels above 24 m that are built from materials other than 
steel  (or  equivalent  material)  that  do  not  currently  fall  under  the  scope  of  Directive 
2009/45/EC.  The  Chair  replied  that  the  main  objective  is  to  develop  guidelines  based  on 
functional  requirements  in  cooperation  with  the  Member  States  and  stakeholders.  These 
guidelines  will  be  considered  together  with  the  development  of  the  Code  or  guidelines  for 
vessels below 24 m (Small Craft Code).   

72 

 
 
 
 
SOS Catastrophes expressed their concern for the vessels below 24 m and the fact that, from a 
safety  perspective,  it  is  difficult  to  understand  why  there  is  no  regulation  for  these  types  of 
ships. The Chair clarified that the majority of these vessels are already outside the scope of 
Directive  2009/45/EC  but  that  does  not  mean  that  these  ships  are  not  regulated  –  national 
standards  apply.  SOS  Catastrophes  also  questioned  why  there  should  be  different  level  of 
safety for small ships compared to big ones. The Chair noted that in view of subsidiarity and 
proportionality,  it  is  important  to  have  EU  legislation  where  there  is  an  added  value  and 
potential of achieving a level playing field. More generally, applying the same requirements is 
almost technically impossible, hence other risk reduction measures are put in place at national 
level  (navigational  rules  etc.).  Furthermore,  the  EU  liability  regime  is  a  pro-active  way  to 
address safety in an indirect manner (evaluation is currently ongoing regarding its extension 
to  vessels  sailing  closer  to  the  coast).  The  Chair  also  highlighted  that  Member  States  are 
positive  towards  achieving  a  common  ground  and  a  minimum  level  of  safety  for  all  small 
ships, based on functional requirements.  

EBI  underlined  the  fact  that  they  represent  the  shipbuilding  sector  for  small  ships,  usually 
below  24m  and  are  therefore  interested  on  the  potential  of  developing  a  Small  Craft  Code 
(although their vessels mainly fall under the Recreational Craft Directive). EBI also presented 
some  technical  comments,  representing  the  concerns  of  the  yards  on  the  aluminium  built 
ships; they were invited by the Chair to submit these in writing via the feedback form on the 
roadmap.  The  main  issue  concerned  the  impracticability  of  retro-fitting.  Moreover,  EBI 
underlined  the  potential  impact  on  the  weight  and  consequently  fuel  consumption  of  the 
vessels, higher emissions and possible also less space for passengers (leading to potential shift 
in  the  choice  of  the  building  material  of  the  vessels).  In  addition,  EBI  also  proposed  that 
smaller vessels (30-35m) should have different, shorter evacuation times and proposed that it 
may be helpful to limit the obligation of insulation in certain areas only, such as the engine 
room or areas with higher risk of fire. On the proposed clarifications of the definitions, their 
opinion was positive.  

The Chair recalled the need to ensure harmonised interpretation of the EU legislation and to 
achieve a common level of safety in a reasonable timeframe. Furthermore, the shift to modern 
materials  is  in  this  segment  already  happening  and  is  unlikely  to  be  initiated  due  to  the 
intended aluminium clarification.  

In  this  context,  EBI  questioned  the  appropriateness  of  the  24  m  threshold,  particularly  with 
respect to the existing aluminium vessels that are built up to 30-35 m. The Chair clarified that 
there  is  no  intention  to  open  the  discussion  on  this  threshold  stemming  from  international 
regulations and that there are very few flag changes on vessels below 24m. ECSA also noted 
that the SOLAS is not designed for ships built entirely in aluminium and transitional period 
would be needed. 

Finally,  EBI  raised  the  issue  of  appropriateness  of  technical  standards  for  Class  C  and  D 
vessels.  In  the  discussion,  it  was  noted  that  Class  C  and  D  ships  are  not  necessarily  small 
ships but also large vessels.  

73 

 
 
B.  Directive  98/41/EC  on  the  registration  of  persons  sailing  on  board  passenger  ships 
operating to or from ports of the Member States of the Community 

CLIA  supported  the  proposal  for  the  declaration  of  the  nationality  and  stated  that  their 
members  have  already  been  reporting  this  element.  ECSA  also  supported  the  inclusion  of 
nationality of persons on board and called for retaining the principle of self-declaration. The 
Chair  welcomed  the  support  and  explained  the  flexibility  envisaged  for  smaller  operators 
recording the number of persons on board only (via the Automatic Identification System). 

On the National Single Window (NSW), ECSA suggested to wait for the full implementation 
and  evaluation  of  the  Reporting  Formalities  Directive  before  requiring  all  operators  to  use 
electronic means for recording the data. The Chair recalled that the NSW is supposed to be 
operational since June 2015 and, in any case, this would certainly be the case by the time the 
proposals enter into force.  

On  request  of  ECSA,  the  Chair  explained  the  existing  requirements  concerning  the 
transmission of passenger and crew lists on shore (at the latest 30 min after departure of the 
vessel). 

ECSA also raised the current issue of recently introduced ID checks at national level in the 
context  of  the  migration  issue.  The  Chair  underlined  the  fact  that  this  is  an  exceptional 
situation and it should be dealt with as such. Explanations were also provided regarding the 
character  of  the  measure  and  the  notification  process  under  the  Schengen  Regulation. 
Interferry  intervened  on  the  element  of  the  burden  of  this  measure  which,  although  being  a 
measure imposed by the government, currently falls on the operators.  

On  the  same  point  SOS  Catastrophes  asked  why  in  shipping  there  is  a  different  logic 
compared to the Schengen regime of knowing exactly who is on board. The Chair explained 
the difference between the objective of the legislation on passenger ship safety and Schengen 
rules and recalled that for a safety perspective, ID verifications are not considered necessary.  

C.  Directive  1999/35/EC  on  a  system  of  mandatory  surveys  for  the  safe  operation  of 
regular ro-ro ferry and high-speed passenger craft services 

No particular issue was raised under this Directive. 

74