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
Date: 2016-06-06
Institutions: Directorate-General for Mobility and Transport, European Commission
Subjects: EU Member State, carriage of passengers, data collection, exchange of information, harbour installation, maritime safety, personal data, traveller, vessel

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   EUROPEAN COMMISSION  Brussels, 6.6.2016  COM(2016) 370 final 2016/0171 (COD)   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 {SWD(2016) 189 final} {SWD(2016) 190 final}  
 
 
EXPLANATORY MEMORANDUM 

1. 

1.1 

CONTEXT OF THE PROPOSAL 

Reasons for and objectives of the proposal 

In the spirit of the Commission's REFIT and Better Regulation agenda and as an immediate 
follow-up to the fitness check on EU passenger ship safety legislation1, the Commission puts 
forward a set of proposals to bring about the identified simplification potential.  

The objectives of this revision are 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. 

Council Directive 98/41/EC2 provides for counting and registration of passengers and crew on 
board of passenger ships operating to and from the EU ports. It aims to ensure that the safety 
of passengers is not compromised by exceeding the maximum authorised number of persons 
on  board  and  that  search  and  rescue  in  the  aftermath  of  any  accident  can  be  dealt  with 
effectively.  

Directive 98/41/EC was the first EU piece of legislation dealing with information on persons 
on board. Since 1998, however, other pieces of EU law and international conventions dealing 
with related issues have entered into force and new technological systems and solutions have 
been  developed. This  has resulted in increasingly complex and overlapping  legal provisions 
dealing with the counting, registration and reporting of persons on board.  

Although an effective search and rescue operation requires immediate access to accurate data 
as  regards  the  persons  on  board,  this  has  not  always  proved  to  be  the  case  in  practice. 
According  to  the  current  requirements,  this  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  SafeSeaNet3  and  the  National  Single  Window4  and  requires  that  the 
national  competent  authority  contacts  the  shipping  company  in  the  event  of  an  emergency. 
Moreover, the recorded data does not always include information on nationality (i.e. besides 
name,  age  and  sex),  making  the  assistance  provided  to  victims  and  their  relatives  more 
difficult. 

As  a  result,  operators  that  already  transmit  such  data  to  the  National  Single  Window  are 
exposed to double reporting regime. This has been pointed out by those Member States who 

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The  results  of  which  have  been  reported  to  the  European  Parliament  and  the  Council  on  16  October 
2015 (COM(2015)508). 
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  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). 
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). 

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in  practice  already  make  use  of  the  Directive  2002/59/EC  to  fulfil  their  Directive  98/41/EC 
obligations. Furthermore, the implementation experience has revealed a number of ambiguous 
definitions  and  rather  complex  requirements,  making  some  of  the  provisions  difficult  to 
monitor and enforce.  

It is therefore proposed to update, clarify and simplify the existing requirements for counting 
and registration of passengers and crew on board passenger ships while enhancing the level of 
safety  they  provide  for.  This  is  fully  in  line  with  the  Commission's  REFIT  programme  and 
aims to exploit the digitalisation potential of recording, transmitting, accessing and protecting 
data. 

The proposal amends the corresponding definitions and requirements of Directive 98/41/EC. 

1.2 

Consistency with existing policy provisions in the policy area 

The  proposal  is  fully  consistent  with  the  simplification  proposals  amending  Directives 
2009/45/EC of the European Parliament and of the Council5 and the new Directive replacing 
Council  Directive  1999/35/EC6.  The  proposal  is  fully  in  line  with  the  fitness  check 
recommendations  and  the  2011  White  Paper  for  the  future  of  transport7  that  recognised  the 
need to modernise the current EU passenger ship safety legislative framework. 

1.3 

Consistency with other Union policies 

The  proposal  delivers  on  the  Commission's  Better  Regulation  agenda  by  ensuring  that  the 
existing  legislation  is  simple  and  clear,  does  not  create  unnecessary  burden  and  keeps  pace 
with evolving political, societal and technological developments. It also delivers on the goals 
of the 2018 Maritime Transport Strategy8 by ensuring quality ferry services in regular intra-
EU passenger transport. 

2. 

2.1 

LEGAL BASIS, SUBSIDIARITY AND PROPORTIONALITY 

Legal basis 

Given that the proposal replaces the current Directive, the legal base remains Article 100(2) 
TFEU (ex Article 80(2) TEC), providing for measures in the field of sea transport. 

Subsidiarity  

2.2 
On request of the Member States9, the EU passenger ship safety legislation has been mainly 
modelled and shaped on the international requirements and in reaction to a number of major 
accidents. Although requirements concerning information on passengers have been adopted at 
international level, this was not the case for passenger ships operating on domestic voyages.  

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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). 
White  Paper  'Roadmap  to  a  Single  European  Transport  Area  –  Towards  a  competitive  and  resource 
efficient transport system' (COM/2011/0144). 
Communication  from  the  Commission  to  the  European  Parliament,  the  Council,  the  European 
Economic  and  Social  Committee  and  the  Committee  of  the  Regions  -  Strategic  goals  and 
recommendations for the EU’s maritime transport policy until 2018 (COM/2009/0008). 
Council Resolution of 22 December 1994 on the safety of ro-ro passenger ferries, (94/C 379/05), O.J. 
No C379 of 31.12.94, p.8. 

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The  proposal  ensures  a  common  and  coherent  application  of  registration  requirements 
established by Directive 98/41/EC for all ships operating to and from EU ports, which could 
not  be  achieved  by unilateral action at the level of Member States. It ensures that  Directive 
98/41/EC  keeps  pace  with  legal  and  technological  developments  and  therefore  continues  to 
enhance the safety and to facilitate search and rescue operation if an accident occurs.  

The proposal also guarantees that competition continues to take place on an equal footing in 
EU waters for all operators irrespective of their nationality or the flag their ships and craft fly 
and without a distinction between international and domestic journeys. At the same time, the 
proposal clarifies the conditions for derogating from the requirements of Directive 98/41/EC 
where local operating conditions may so require.  

2.3 

Proportionality 

In view of the latest technological and legal developments, the proposal to remove outdated 
requirements, remove overlaps and clarify ambiguous requirements is considered as the only 
proportionate and coherent option. It ensures that the current high level of safety is maintained 
and further enhanced by using the means of electronic data transmission.  

More  specifically,  the  requirement  to  record  the  information  on  the  persons  on  board  in  an 
existing  electronic  system  (that  in  the  event  of  an  emergency  allows  the  data  to  be 
immediately accessed by the competent authority) is considered to present a leap forward in 
comparison  to  the  current  safety  level,  without  generating  significant  costs  for  operators  or 
national administrations.  

In  this  context,  the  requirement  to  approve  passenger  registration  systems  has  proven  to 
generate  significant  workload  for  some  national  administrations.  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.  The  requirement  for  company  passenger 
registration  systems  should  be  removed  and  focus  oriented  on  the  registration  performance, 
i.e. on the accuracy and timeliness of recording the data in existing electronic systems. 

As the experience has 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 but 
also  their  nationality.  It  is  therefore  proposed  to  register  such  information  on  the  basis  of  a 
self-declaration  of  passengers,  as  it  is  currently  the  case  for  other  information.  This  will 
ensure  that  those  operators  currently  not  recording  such  information  face  none  or  marginal 
cost of such additional data entry. 

2.4 

Choice of the instrument 

In  accordance  with  the principle  of  proportionality,  a  Directive  remains  to  be  considered  as 
the  most  suitable  form  for  achieving  the  identified  objectives.  It  establishes  common 
principles and a harmonised level of safety, ensures the enforcement of the rules, but leaves 
the choice of practical and technical procedures to be applied to each Member State. In doing 
so,  it  leaves  the  responsibility  to  each  Member  State  to  decide  on  the  implementation  tools 
which best fit its internal system.  

In  this  regard,  the  most  adequate  legal  solution  was  found  to  be  a  proposal  amending 
Directive  98/41/EC.  Alternative  option  of  proposing  a  new  Directive  was  discarded  on  the 
basis of the limited number of clearly identifiable changes to the current Directive. 

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3. 

RESULTS 
CONSULTATIONS AND IMPACT ASSESSMENTS 

EX-POST 

EVALUATIONS, 

OF 

STAKEHOLDER 

3.1 

Ex-post evaluations/fitness checks of existing legislation 

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 level of safety 
for  passenger  ships  within  the  EU  and  a  level  playing  field  between  operators  as  well  as 
increased transfer of ships between Member States. 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.  Recommendations  to  simplify,  clarify  and  repeal  a 
number of ambiguous, outdated or overlapping requirements have been made in a number of 
areas: 

(a) 

Eliminate  double  reporting  of  passengers  requirements  and  align  the  existing 
reporting requirements for all operators by providing for: 

 

 

Recording  the  information  on  the  number  of  persons  on  board  in  an  existing 
electronic system that in the event of an emergency or accident allows for an 
immediate  transmission  of  data  to  the  competent  authority  instead  of  in  the 
company system, before departing and before arriving to any EU port of call.  

Recording  –  for  every  voyage  beyond  20  nautical  miles  –  of  the  required 
information on crew and passengers in the same system as above instead of in 
the  company  system,  before  departing  and  before  arriving  to  any  EU  port  of 
call. Clarify the definitions of passenger registration requirements in Directive 
98/41/EC, such as length of the voyage. 

Avoid  overlaps  and  require  –  for  every  voyage  beyond  20  nautical  miles  –  the 
nationality of passengers to be registered and transmitted to the competent authority, 
using the same means and criteria as the ones in place for recording and transmitting 
the already required data on name, age, etc. 

Clarify the definitions of passenger registration requirements in Directive 98/41/EC, 
such as length of the voyage. 

Eliminate from Directive 98/41/EC the requirement for the approval of the passenger 
registration systems. 

Streamline  the  reporting  mechanism  of  exemptions/equivalencies  under  Directive 
2009/45/EC and Directive 98/41/EC. 

(b) 

(c) 

(d) 

(e) 

3.2 

Stakeholder consultations 

Given the technical nature of the envisaged proposals, a targeted consultation has been chosen 
as  the  most  adequate  tool.  National  experts  have  been  consulted  in  the  framework  of  the 
Passenger Ship Safety Expert Group. A workshop was organised where the Member States as 
well  as  industry  and  passenger  associations  were  invited  to  participate.  The  envisaged 
measures were presented on numerous occasions. In addition, the roadmap published on the 
Europa website10 allowed all stakeholders to provide feedback by means of an online response 
form. 

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http://ec.europa.eu/smart-regulation/roadmaps/index_en.htm. 

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The  consultation  summary  as  well  as  detailed  feedback  on  comments  raised  during  the 
consultation process is provided in the Staff Working Document accompanying the proposal. 
The  envisaged  simplification  measures  were  supported  by  the  large  majority  of  national 
experts, albeit a number of comments have been made with respect to exact wording of some 
of  the  proposals.  All  suggestions  have  been  therefore  carefully  reviewed  and  proposals 
amended as appropriate. In addition, some experts raised questions concerning practical and 
technical implementation aspects, which have been addressed in the Staff Working Document 
accompanying the proposal and are embedded in the Implementation Plan. 

Stakeholders  from  industry  insisted  that  the  key  principles  of  the  current  legal  framework 
remained  unchanged (namely in  relation  to  the self-declaration of passenger data) while  the 
passenger  association  called  for  upgrading  the  safety  level  and  warned  against  its  dilution. 
The proposal therefore ensures that the existing level of safety is maintained and, to the extent 
possible  within  the  simplification  framework,  increased  (e.g.  by  exploiting  the  existing 
electronic systems and clarifying how the 20 nautical miles threshold should be calculated). 

3.3 

Collection and use of expertise 

This review builds primarily on the data collected during the fitness check process as reported 
in  the  Commission  Staff  Working  Document  'Adjusting  course:  EU  Passenger  Ship  Safety 
Legislation Fitness Check', adopted on 16 October 201511. 

In addition to the data and consultation carried out in the framework of the 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. It is reported on in the Staff Working 
Document accompanying the proposal. 

3.4 

Impact assessment 

The  proposal  is  an  immediate  follow-up  to  the  fitness  check  that  identified  the  issues  for 
simplification  in  detail  and  assessed  the  simplification  potential.  As  highlighted  in  the 
roadmap, the envisaged measures are either not expected to generate any significant impacts 
(i.e. beyond those that are non-measurable such as legal clarity, certainty or simplicity) or no 
materially  different  solutions  have  been  identified.  In  line  with  the  Commission's  Better 
Regulation Guidelines, a fully-fledged impact assessment has not been carried out. 

Nonetheless,  the  simplification  proposal  is  accompanied  by  a  Commission  Staff  Working 
Document that recalls the recommendations of the fitness check and explains the rationale of 
the proposed solutions from the technical as well as legal perspective. It includes a summary 
and  a  feedback  on  the  stakeholder  consultation  carried  out  in  support  of  this  initiative.  An 
implementation plan is also attached.  

3.5 

Regulatory fitness and simplification 

To ensure that the existing legislation is fit for purpose is the main objective of this proposal. 
Using  the  available  means  of  electronic  communication  will  allow  achieving  the  policy 
objectives more effectively and efficiently. The simplification potential primarily consists of 

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SWD(2015)197. 

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removing  overlaps  in  reporting  obligations,  disproportionate  requirements  and  of  non-
measurable impacts such as legal clarity, certainty and simplicity.  

The double reporting requirements for operators that already transmit passenger and crew data 
to the National Single Window provide an additional and unnecessary burden for the industry. 
A lighter regime is envisaged for those (in principle smaller) operators that do not yet use the 
systems mentioned above. These companies operate mainly on very short domestic voyages 
(i.e. recording information only on the number of persons on board) and do not have computer 
systems or internet connection.  

To  neutralise  any  possible  cost  increase  for  these  operators,  it  is  envisaged  that  they  would 
have  a  choice  to  transmit  the  number  of  persons  on  board  via  the  Automatic  Information 
System, a maritime broadcast system based on the transmission of very high frequency radio 
signals. This would allow the local search and rescue centre to easily retrieve the number of 
persons on board, at any point of time, regardless of the availability of a contact person.  

Member  States  will  be  dispensed  of  approving  the  company  passenger  registration  systems, 
albeit they will remain responsible for ensuring that the information is collected and recorded 
electronically in an accurate and timely manner. 

3.6 

Fundamental rights 

The proposal does not add additional categories or change the categories of personal data that 
have  to  be  collected  and  recorded  according  to  the  existing  requirements  of  Directive 
98/41/EC. The only exception in this respect is the information on nationality of persons on 
board that is for the reasons explained above proposed to be added to the information already 
recorded  (i.e.  the  family  names  of  the  persons  on  board,  their  forenames  or  initials,  their 
gender, an indication of the category of age to which each person belongs, or the age, or the 
year  of  birth,  and  when  volunteered  by  a  passenger,  information  concerning  the  need  for 
special care or assistance in emergency situations). 

Nonetheless,  Directive  98/41/EC  needs  to  be  modernised  in  correspondence  with  the  legal 
developments  in  the  area  of  personal  data  protection,  in  particular  Regulation  (EU)  No 
XXX/201612. In this regard, although the categories of data, purpose and recipients are clearly 
identified,  the  data  retention  period  is  not.  Directive  98/41/EC  requires  that  the  company 
should  not  keep  personal  data  longer  than  necessary  for  the  purposes  of  this  Directive,  but  
does not indicate how long such period should be. 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. It is therefore proposed 
to  establish  the  retention  period  in  this  Directive  (without  prejudice  to  other  legal 
requirements  where  such  data  is  collected  for  different  purposes  with  different  retention 
period). 

Furthermore, although the Directive stipulates that the company registration systems have to 
be  protected  against  accidental  or  unlawful  destruction  or  loss  and  unauthorised  alteration, 
disclosure or access, it does not refer to EU law on the protection of personal data and does 
not  include  any  guarantees  regarding  the  accessibility  of  personal  data.  In  this  respect,  the 
proposal is considered to provide for major improvement in the protection of personal data. 

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Reference to be added after adoption. 

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In addition, the proposal replaces the requirement to store personal data by the company by 
the  requirement  to  transmit  such  data  to  an  existing  electronic  system  designed  for  such 
purpose  (and  to  delete  personal  data  when  the  transmission  has  been  completed).  The 
proposed  transmission  to  the  National  Single  Window  caters  for  the  confidentiality 
requirements (as defined in Article 8 of Directive 2010/65/EU) and complies with EU law on 
the protection of personal data. It equally provides for the restricted accessibility of such data 
that  is  to  be  provided  to  the  relevant  national  authorities  upon  request  (the  exchange 
mechanism  in  the  event  of  an  emergency  or  in  the  aftermath  of  an  accident  being  the 
SafeSeaNet  system  as  defined  in  Directive  2002/59/EC).  Equally  to  the  National  Single 
Window, the SafeSeaNet is driven by EU law on protection of personal data and provides for 
clearly defined security and access rights. 

The  relevant  national  authorities  to  whom  access  shall  be  granted  for  the  purpose  of  this 
Directive are authorities for search and rescue designated by Member States. Upon request, in 
the event of an emergency or in the aftermath of an accident, the search and rescue authorities 
shall  have  immediate  access  to  the  information  reported  in  accordance  with  Directive 
98/41/EC. 

4. 

BUDGETARY IMPLICATIONS 

The proposal has no implications for the Union budget. 

5. 

5.1 

OTHER ELEMENTS 

Implementation plans and monitoring, evaluation and reporting arrangements 

The  proposal  is  accompanied  by  an  implementation  plan  that  lists  the  actions  needed  to 
implement  the  simplification  measures  and  identifies  the  main  technical,  legal  and  time-
related implementation challenges. 

Adequate monitoring and reporting arrangements have been identified, without creating new 
reporting obligations and administrative burdens. The key information on fleet, accidents and 
compliance  will  be  collected  with  the  assistance  of  EMSA,  Passenger  Ship  Safety  Expert 
Group  and  on  the  basis  of  the  European  Marine  Casualty  Information  Platform  (EMCIP) 
database. Given that the full cycle of the envisaged EMSA implementation visits is estimated 
to last 5 years, the evaluation cycle of the EU passenger ship safety legislation should be set at 
7 yearly intervals. 

5.2 

Explanatory documents  

Explanatory documents are not required as the simplification measures are not of substantial 
or complex nature. 

5.3 

Detailed explanation of the specific provisions of the proposal 

Definitions and scope 

Article  2  is  amended  to  align  as  far  as  possible  the  definitions  with  the  proposal  amending 
Directive 2009/45/EC and with the proposal for a new Directive replacing 1999/35/EC and to 
align the responsibility of the passenger registrar with the proposal to remove the requirement 
for the information required by this Directive to be retained by the company.  

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Article  3  is  amended  to  clarify  the  scope  of  the  Directive  and  to  bring  it  in  line  with  the 
definition  of  port  areas  as  defined  in  accordance  with  the  proposal  amending  Directive 
2009/45/EC. 

Information on persons on board 

Article  4  is  amended  to  replace  the  requirement  to  store  the  information  on  the  number  of 
persons  on  board  in  the  company  by  recording  it  in  the  National  Single  Window  or 
transmission by means of Automatic Identification System. 

Article 5 is amended to introduce the information on nationality of persons on board and to 
replace the requirement to store the lists of passengers and crew by the company by recording 
it in the National Single Window. The list of required data entries is simplified, clarified and 
aligned as far as possible with reporting requirements into the National Single Window. 

Article 6 is amended to align the reference with the proposed means of data transmission and 
to clarify the responsibilities of Member States with respect to passenger ships flying the flag 
of a third country. 

Companies 

Article 8 is amended to reflect the new role of the passenger registrar (i.e. not to store but to 
transmit the data) and to remove the requirement to set up a company passenger registration 
system. It is also amended to reflect EU law on protection of personal data and specifies that 
personal  data  shall  be  destroyed  by  the  company  once  transmitted  to  the  single  window 
(without prejudice to other reporting obligations). 

Exemptions 

Article 9 is amended to remove the outdated reference to the exemption for regular services 
crossing the Strait of Messina. In light of the introduction of electronic transmission of data 
and  given  the  proposed  flexibility  to  transmit  the  number  of  persons  on  board,  Article  9  is 
amended  to  remove  the  possibility  to  exempt  operators  from  transmitting  the  number  of 
persons on board to the competent authorities.  

Article 9 is also amended to ensure that the exemption criteria reflect the proximity of search 
and rescue facilities which are no longer included in the new definition of protected sea areas. 
Finally, Article 9 is amended to simplify the notification of exemptions via a database to be 
established  and  maintained  for  this  purpose  and  to  align  the  procedures  for  objecting  the 
exemptions within this Directive and with Directive 2009/45/EC. 

Member States 

Article 10 is amended to align the responsibility of Member States with the proposed means 
of  data  transmission  and  to  reflect  EU  law  on  protection  of  personal  data  by  specifying  the 
conditions for processing the data by Member States, access rights and data retention periods. 

Ancillary provisions 

Article  11  is  amended  to  remove  the  requirements  on  company  registration  systems  that 
become  redundant  with  the  proposal.  The  corresponding  paragraph  1  of  Article  12  is  also 
removed. 

Committee procedure and amendment procedure 

Articles 12 and 13 have been brought in line with Treaty on the Functioning of the European 
Union. Article 12a has been added for the same reason (exercise of delegation power). 

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Evaluation provisions 

Article 14a has been added to specify the evaluation provisions.  

Amendment to Annex of Directive 2010/65/EU 

The proposal includes an ancillary amendment to the Annex of Directive 2010/65/EU, part A, 
determined by the changes brought to Directive 98/41/EC. 

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2016/0171 (COD) 

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 

THE EUROPEAN PARLIAMENT AND THE COUNCIL OF THE EUROPEAN UNION, 

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

Having regard to the proposal from the European Commission, 

After transmission of the draft legislative act to the national parliaments, 
Having regard to the opinion of the European Economic and Social Committee13, 
Having regard to the opinion of the Committee of the Regions14,  

Acting in accordance with the ordinary legislative procedure, 

Whereas: 

(1) 

(2) 

Accurate and timely information on the numbers of persons on board a ship or on their 
identity  is  essential  for  the  preparation  and  effectiveness  of  search  and  rescue 
operations. In the event of an accident at sea, full and complete cooperation between 
the competent national authorities of the State or states involved, the ship operator and 
their  agents  can  contribute  significantly  to  the  effectiveness  of  operations  by  the 
competent  authorities.  Certain  aspects  of  that  cooperation  are  regulated  by  Council 
Directive 98/41/EC15. 
In view of the Regulatory Fitness Programme (REFIT) fitness check16 results and the 
implementation experience that has shown that the information on persons on board is 
not always readily available to the competent authorities, the current requirements of 
Directive  98/41/EC  should  be  brought  in  line  with  the  requirements  to  report  data 
electronically,  making  them  more  efficient  and  less  burdensome.  Digitalisation  will 
also allow to accelerate the utilisation of information concerning significant number of 
passengers in the event of an emergency or in the aftermath of an accident. 

(3) 

Over  the  past  17  years,  key  technological  progress  has  been  made  in  the  means  of 
communicating  and  storing  data  on  ship  movements  allowing  the  use  of  automatic 
identification  systems  (AIS)  on  board  of  ships  for  enhanced  ship  monitoring.  As  a 

13 
14 
15 

16 

OJ C , , p. . 
OJ C , , p. . 
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). 
COM(2015)508. 

EN 

11 

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(4) 

(5) 

(6) 

(7) 

(8) 

result,  the  related  costs  of  equipment  to  carry  out  these  functions  have  been 
significantly reduced. A number of mandatory ship reporting systems have been set up 
along  Europe's  coasts,  in  accordance  with  the  relevant  rules  adopted  by  the 
International Maritime Organisation (IMO). Union and national law ensure that ships 
comply with the reporting requirements in force under those systems. 

The  collection,  transmission  and  sharing  of  ship-related  data  has  been  enabled, 
simplified  and  harmonised  by  the  National  Single  Window  referred  to  in  Directive 
2010/65/EU of the European Parliament and of the Council17 and SafeSeaNet referred 
to  in  Directive  2002/59/EC  of  the  European  Parliament  and  of  the  Council18.  The 
information on the persons on board required by Directive 98/41/EC should therefore 
be  recorded  in  the  National  Single  Window  that  in  the  event  of  an  emergency  or 
accident allows the data to be readily available to the competent authority.  

In view of ensuring compliance with the principle of proportionality, smaller operators 
that do not yet use the National Single Window and that operate mainly on very short 
domestic  voyages  below  20  nautical  miles  (i.e.  have  the  obligation  to  record  the 
number  of  persons  on  board  only),  should  have  a  choice  as  regards  the  means  of 
making such number available either via the National Single Window or the AIS. 

To reduce the anxiety of relatives in case of an accident and unnecessary delays in the 
consular  assistance  and  other  services,  the  communicated  data  should  include 
information  on  nationality  of  persons  on  board.  The  list  of  required  data  entries  for 
voyages beyond 20 nautical miles should be simplified, clarified and aligned as far as 
possible with reporting requirements into the National Single Window. 

Taking into account the availability of electronic means of data recording and the fact 
that personal data should in any event be collected before the ship's departure, the 30 
minutes delay currently provided for by Directive 98/41/EC should be considered as a 
maximum and used in exceptional cases only. 

To increase legal clarity and consistency with related Union legislation and Directive 
2009/45/EC of the European Parliament and of the Council19 in particular, a number of 
outdated,  ambiguous  and  confusing  references  should  be  updated  or  deleted.  The 
notion  of  'sea-going'  passenger  ship  should  be  replaced  by  'passenger  ship'  and  the 
notion of 'protected sea area' should be replaced by clearly defined sea areas, listed by 
Member States in accordance with Directive 2009/45/EC. The definition of 'passenger 
registrar' should be amended to reflect the new duties that no longer include keeping 
the  information.  The  corresponding requirements  for  company  passenger  registration 
systems should be deleted. 

(9)  Member  States  should  remain  responsible  for  ensuring  compliance  with  the  data 
registration  requirements  under  Directive  98/41/EC,  namely  as  regards  the  accuracy 
and  timely  registration  of  the  data.  In  this  regard,  verification  should  be  carried  out 
similarly to random checks currently provided for company registration systems.  

17 

18 

19 

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). 
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). 
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). 

EN 

12 

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(10) 

(11) 

In as much  as measures entail the processing of personal data, those shall be carried 
out  in  accordance  with  Union  law on  the  protection  of  personal  data20.  In  particular, 
personal data collected for the purposes of Directive 98/41/EC should not be processed 
and used for any other purpose and should not be retained longer than necessary for 
the purposes of Directive 98/41/EC as specified therein. 

In view of the principle of proportionality and given that it is in the passenger's best 
interest to provide genuine information the current means of personal data collection 
on a basis of self-declaration of passengers is sufficient for the purposes of Directive 
98/41/EC.  At  the  same  time,  electronic  means  of  data  registration  and  verification 
should ensure that unique information is registered for every person on board. 

(12)  To  increase  transparency  and  to  facilitate  the  notification  by  Member  States  of 
exemptions  and  requests  for  derogation,  a  database  should  be  established  and 
maintained  for  this  purpose  by  the  Commission.  It  should  include  the  notified 
measures in their draft and adopted form.  

(13) 

(14) 

In  view  of  the  changes  brought  about  by  the  Treaty  on  the  Functioning  of  the 
European  Union,  the  powers  conferred  on  the  Commission  to  implement  Directive 
98/41/EC should be updated correspondingly. Implementing acts should be adopted in 
accordance with Regulation (EU) No 182/2011 of the European Parliament and of the 
Council21. 

In  order  to  take  account  of  developments  at  international  level  and  to  increase 
transparency, the power to adopt acts in accordance with Article 290 of the Treaty on 
the  Functioning  of  the  European  Union  should  be  delegated  to  the  Commission  in 
respect  of  excluding  amendments  to  the  international  instruments  from  the  scope  of 
this Directive if necessary and establishing conditions of access for the database kept 
by the Commission to host notifications by Member States of exemptions and requests 
for derogation. It is of particular importance that the Commission carry out appropriate 
consultations  during  its  preparatory  work,  including  at  expert  level,  and  that  those 
consultations  be  conducted  in  accordance  with  the  principles  laid  down  in  the 
Interinstitutional Agreement on Better Law-Making of 13 April 2016. In particular, to 
ensure  equal  participation  in  the  preparation  of  delegated  acts,  the  European 
Parliament and the Council receive all documents at the same time as Member States' 
experts,  and  their  experts  systematically  have  access  to  meetings  of  Commission 
expert groups dealing with the preparation of delegated acts. 

(15) 

In view of the full monitoring cycle of European Maritime Safety Agency visits, the 
Commission should evaluate the implementation of Directive 98/41/EC no later than 
[seven years after the date referred to in the second subparagraph of Article 3(1)] and 
report  to  the  European  Parliament  and  the  Council  thereon.  Member  States  should 
cooperate with the Commission to gather all information necessary for this evaluation. 

20 

21 

In  particular  Regulation  (EU)  No  XXX/2016  of  XXX  (number  and  date  to  be  added  after  formal 
adoption) of the European Parliament and of the Council on the protection of individuals with regard to 
the  processing  of  personal  data  and  on  the  free  movement  of  such  data  (General  Data  Protection 
Regulation) (reference to OJ to be added after formal adoption) and Regulation (EC) No 45/2001 of the 
European  Parliament  and  of  the  Council  of  18  December  2000  on  the  protection  of  individuals  with 
regard  to  the  processing  of  personal  data  by  the  Community  institutions  and  bodies  and  on  the  free 
movement of such data (OJ L 8, 12.1.2001, p. 1). 
Regulation  (EU)  No  182/2011  of  the  European  Parliament  and  of  the  Council  of  16  February  2011 
laying down the rules and general principles concerning mechanisms for control by Member States of 
the Commission’s exercise of implementing powers (OJ L 55, 28.2.2011, p. 13). 

EN 

13 

   EN 

 
                                                 
(16)  To  reflect  the  changes  brought  to  Directive  98/41/EC,  information  on  persons  on 
board should be included in the list of reporting formalities referred to in Part A of the 
Annex of Directive 2010/65/EU. 

(17)  Directives 98/41/EC and 2010/65/EU should therefore be amended accordingly,  

HAVE ADOPTED THIS DIRECTIVE: 

Article 1 
Amendments to Directive 98/41/EC 

Directive 98/41/EC is amended as follows: 

(1) 

Article 2 is amended as follows: 

(a) 

the second indent is replaced by the following: 

"– ‘passenger ship' shall mean a ship or a high-speed craft which carries more 
than 12 passengers,"; 

(b) 

the sixth indent is replaced by the following: 

"–  '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,"; 

(c) 

the ninth indent is replaced by the following: 

"–  'protected  sea  area'  shall  mean  a  sea  area  in  which  ships  of  Class  D  may 
operate, listed pursuant to Article 4(2) of Directive 2009/45/EC,"; 

(d) 

in the tenth indent, the introductory phrase is replaced by the following: 

"– 'regular service' shall mean a series of ship crossings operated so as to serve 
traffic between the same two or more ports, or a series of voyages from and to 
the same port without intermediate calls, either:"; 

(e) 

the eleventh subparagraph is replaced by the following: 

"– 'third country' shall mean any country which is not a Member State,"; 

(f) 

the following twelfth indent is added: 

"– 'port area' shall  mean an area defined in point (r) of Article 2 of Directive 
2009/45/EC,";  

(g) 

the following thirteenth indent is added: 

"–  'pleasure  yacht/craft'  shall  mean  a  vessel  carrying  no  cargo  and  not  more 
than  12  passengers  not  engaged  in  trade,  regardless  of  the  means  of 
propulsion."; 

(2) 

Article 3 is amended as follows: 

(a) 

the first indent is replaced by the following: 

"– ships of war and troop ships,"; 

(b) 

the second indent is replaced by the following: 

"– pleasure yachts and craft,";  

(c) 

the following third indent is added: 

EN 

14 

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"– passenger ships exclusively engaged in port areas.";  

(3) 

in Article 4, paragraph 2 is replaced by the following: 

"2. Before the passenger ship departs the number of persons on board shall be 
communicated  to  the  master  of  the  passenger  ship  and  recorded  in  the  single 
window  established  pursuant  to  Article  5  of  Directive  2010/65/EU  of  the 
European Parliament and of the Council* or made available to the designated 
authority by means of Automatic Identification System. 

_____________ 

* 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)."; 

(4) 

Article 5 is replaced by the following: 

"Article 5 

1. The following information shall be recorded regarding every passenger ship 
that departs from a port located in a Member State to undertake a voyage where 
the distance sailed from the point of departure to the next port of call exceeds 
20 miles: 

– 

– 

– 

– 

– 

– 

the family names of the persons on board, 

their forenames, 

their gender, 

their nationality, 

their year of birth, 

when  volunteered  by  a  passenger,  information  concerning  the  need  for 
special care or assistance in emergency situations. 

2.  That  information  shall  be  collected  before  departure  and  recorded  in  the 
single window established pursuant to Article 5 of Directive 2010/65/EU upon 
the passenger ship's departure but in no case later than thirty minutes after its 
departure. 

3.  Personal  data  collected  for  the  purposes  of  this  Directive  should  not  be 
processed and used for any other purpose.";  

(5) 

in Article 6, paragraph 2 is replaced by the following: 

"2. Each Member State shall, as regards every passenger ship that flies the flag 
of  a  third  country  and  departs  from  a  port  located  outwith  the  Union  and  is 
bound for a port located in that Member State, require the company to ensure 
that the information specified in Articles 4(1) and 5(1) is provided as laid down 
in Articles 4(2) and 5(2)."; 

(6) 

Article 8 is replaced by the following: 

EN 

15 

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"Article 8 

Each  company  assuming  responsibility  for  operating  a  passenger  ship  shall, 
where  required  under  Articles  4  and  5  of  this  Directive,  appoint  a  passenger 
registrar  responsible  for  recording  the  information  referred  to  in  those 
provisions in the single window established pursuant to Article 5 of Directive 
2010/65/EU  or  making  it  available  by  means  of  Automatic  Identification 
System. 

Personal  data  collected  in  accordance  with  Article  5  shall  not  be  kept  by  the 
company longer than necessary for the purposes of this Directive namely until 
the moment the data is recorded in the single window established pursuant to 
Article  5  of  Directive  2010/65/EU.  Without  prejudice  to  other  reporting 
obligations, once the information is no longer needed for this purpose, it shall 
be destroyed. 

Each company shall  ensure that information  concerning passengers who have 
declared  a  need  for  special  care  or  assistance  in  emergency  situations  is 
properly  recorded  and  communicated  to  the  master  before  the  passenger  ship 
departs."; 

(7) 

Article 9 is amended as follows: 

(a)  paragraph 2 is amended as follows: 

– points (a) and (b) are deleted; 

– point (c) is replaced by the following: 

"(c)  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."; 

(b) 

in paragraph 3, points (a) and (b) are replaced by the following: 

"(a)  the  Member  State  shall  without  delay  notify  the  Commission  of  its 
decision  to  grant  an  exemption  from  the  obligations  laid  down  in  Article  5 
giving  substantive  reasons  therefor.  This  notification  shall  be  carried  out  by 
means  of  a  database  established  and  maintained  by  the  Commission  for  such 
purpose. The Commission is empowered to adopt delegated acts in accordance 
with Article 12a concerning the conditions of access to this database. 

(b) if within six months of such notification the Commission considers that that 
decision is not justified or could have adverse effects on competition, it may, 
by  means  of  an  implementing  act,  require  the  Member  State  to  amend  or 
withdraw its decision. Those implementing acts shall be adopted in accordance 
with the examination procedure referred to in Article 13(2).";  

(c) 

in paragraph 4, the third subparagraph is replaced by the following: 

"The  request  shall  be  submitted  to  the  Commission  by  means  of  a  database 
referred to in paragraph 3. If within six months of such request the Commission 
considers  that  derogation  is  not  justified  or  could  have  adverse  effects  on 
competition,  it  may,  by  means  of  an  implementing  act,  require  the  Member 
State to amend or not to adopt the proposed decision. Those implementing acts 
shall  be  adopted  in  accordance  with  the  examination  procedure  referred  to  in 
Article 13(2).";  

EN 

16 

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(8) 

Article 10 is replaced by the following: 

"Article 10 

Member  States  shall  verify  the  accuracy  and  timeliness  of  data  registration 
required by this Directive. 

Each  Member  State  shall  designate  the  authority  that  will  have  access  to  the 
information  required  under  this  Directive.  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  under  this 
Directive. 

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:  

(a)  until  the  moment  the  ship's  voyage  in  question  has  been  safely 

completed; or 

(b) 

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, it shall be destroyed."; 

(9) 

Article 11 is replaced by the following: 

"Article 11 

1. 
For  the  purposes  of  this  Directive  the  required  data  shall  be  collected  and 
recorded  in  such  a  way  that  no  undue  delay  is  caused  for  passengers  embarking 
and/or disembarking the vessel. 

A  multiplicity  of  data  collection  on  the  same  or  similar  routes  shall  be 

2. 
avoided.";  

(10) 

Article 12 is replaced by the following: 

"Article 12 

The  Commission  is  empowered  to  adopt  delegated  acts  in  accordance  with  Article 
12a,  amending  this  Directive in  order  to  exclude  from  its  scope  any  amendment  to 
the  international  instruments  referred  to  in  Article  2  only  if,  on  the  basis  of  an 
evaluation  by  the  Commission,  there  is  a  manifest  risk  that  the  international 
amendment  will  lower  the  standard  of  maritime  safety,  established  by  Union 
maritime legislation, or be incompatible with the latter."; 

(11) 

the following Article 12a is inserted: 

"Article 12a 

The power to adopt delegated acts referred to in Articles 9 and 12 is conferred 

1. 
on the Commission subject to the conditions laid down in this Article. 

2. 
The  power  to  adopt  delegated  acts  referred  to  in  Articles  9  and  12  shall  be 
conferred on the Commission for an indeterminate period of time from [the date of 
entry into force]. 

EN 

17 

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3. 
The delegation of power referred to in Articles 9 and 12 may be revoked at any 
time by the European Parliament or by the Council. A decision to revoke shall put an 
end to the delegation of the power specified in that decision. It shall take effect the 
day following the publication of the decision in the Official Journal of the European 
Union  or  at  a  later  date  specified  therein.  It  shall  not  affect  the  validity  of  any 
delegated acts already in force. 

4. 
Before  adopting  a  delegated  act,  the  Commission  shall  consult  experts 
designated by each Member State in accordance with the principles laid down in the 
Interinstitutional Agreement on Better Law-Making of 13 April 2016. 

As  soon  as  it  adopts  a  delegated  act,  the  Commission  shall  notify  it 

5. 
simultaneously to the European Parliament and to the Council. 

A  delegated  act  adopted  pursuant  to  Articles  9  and  12  shall  enter  into  force 
6. 
only if no objection has been expressed either by the European Parliament or by the 
Council  within  a  period  of  two  months  of  notification  of  that  act  to  the  European 
Parliament  and  the  Council  or  if,  before  the  expiry  of  that  period,  the  European 
Parliament  and  the  Council  have  both  informed  the  Commission  that  they  will  not 
object. That period shall be extended by two months at the initiative of the European 
Parliament or of the Council. 

7. 
A delegated act excluding from the scope of this Directive any amendment to 
the international instruments in accordance with Article 12 shall be adopted at least 
three  months  before  the  expiration  of  the  period  established  internationally  for  the 
tacit acceptance of the amendment concerned or the envisaged date for the entry into 
force  of  said  amendment.  In  the  period  preceding  the  entry  into  force  of  such 
delegated  act,  Member  States  shall  refrain  from  any  initiative  intended  to  integrate 
the amendment in national legislation or to apply the amendment to the international 
instrument concerned."; 

(12) 

Article 13 is amended as follows: 

(a)  paragraph 2 is replaced by the following: 

"2.  Where  reference  is  made  to  this  paragraph,  Article  5  of  Regulation  (EU)  No 
182/2011 of the European Parliament and of the Council* shall apply. 

____________ 

* Regulation (EU) No 182/2011 of the European Parliament and of the Council of 16 
February 2011 laying down the rules and general principles concerning mechanisms 
for control by Member States of the Commission’s exercise of implementing powers 
(OJ L 55, 28.2.2011, p. 13)."; 

(b)  paragraph 3 is deleted; 

(13) 

the following Article 14a is inserted: 

"Article 14a 

The Commission shall evaluate the implementation of this Directive and submit the results of 
the evaluation to the European Parliament and the Council no later than [seven years after the 
date referred to in the second subparagraph of Article 3(1)].". 

EN 

18 

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Article 2 
Amendments to the Annex to Directive 2010/65/EU 

In Part A of the Annex to Directive 2010/65/EU, the following point (7) is added: 

"7.  

Information on persons on board 

Articles 4(2) and 5(2) of 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).". 

Article 3  
Transposition 

1. 

Member States shall adopt and publish, by [12 months after the entry into force] at 
the  latest,  the  laws,  regulations  and  administrative  provisions  necessary  to  comply 
with this Directive. They shall forthwith communicate to the Commission the text of 
those provisions. 

They shall apply those provisions from [12 months after the entry into force]. 

When  Member  States  adopt  those  provisions,  they  shall  contain  a  reference  to  this 
Directive  or  be  accompanied  by  such  a  reference  on  the  occasion  of  their  official 
publication. Member States shall determine how such reference is to be made. 

2. 

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

Article 4  
Entry into force 

This Directive shall enter into force on the twentieth day following that of its publication in 
the Official Journal of the European Union. 

Article 5  
Addressees 

This Directive is addressed to the Member States. 

Done at Brussels, 

For the European Parliament 
The President 

For the Council 
The President 

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