Proposal for a COUNCIL DECISION on the position to be taken on behalf of the European Union during the 99th session of the International Maritime Organization's Maritime Safety Committee on the adoption of amendments to SOLAS regulations II-1/1 and II-1/8-1, the approval of relevant guidelines on computerised stability support for the master in case of flooding for existing passenger ships and on the adoption of amendments to the International Code for Application of Fire Test Procedures, 2010
Date: 2018-03-12
Institutions: Directorate-General for Mobility and Transport, European Commission
Subjects: International Maritime Organisation, crew, fire protection, information technology applications, international convention, maritime safety, revision of an agreement, safety standard, vessel

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   EUROPEAN COMMISSION  Brussels, 12.3.2018  COM(2018) 122 final 2018/0056 (NLE)  Proposal for a COUNCIL DECISION on the position to be taken on behalf of the European Union during the 99th session of the International Maritime Organization's Maritime Safety Committee on the adoption of amendments to SOLAS regulations II-1/1 and II-1/8-1, the approval of relevant guidelines on computerised stability support for the master in case of flooding for existing passenger ships and on the adoption of amendments to the International Code for Application of Fire Test Procedures, 2010  
 
 
EXPLANATORY MEMORANDUM 

1. 

SUBJECT-MATTER OF THE PROPOSAL 

This  proposal  concerns  the  decision  establishing  the  position  to  be  taken  on  the  Union’s 
behalf  at  the  99th  session  of  the  International  Maritime  Organization’s  Maritime  Safety 
Committee in connection with the envisaged adoption of amendments to SOLAS regulations 
II-1/1 and II-1/8-1 and relevant guidelines on computerized stability support for the master in 
case of flooding for existing passenger ships and to the International Code for Application of 
Fire Test Procedures, 2010 (2010 FTP Code).  

2. 

CONTEXT OF THE PROPOSAL 

2.1. 

The Convention on the International Maritime Organization (IMO) 

The Convention on the International Maritime Organization (IMO) establishes the IMO, the 
purpose of which is to provide a forum for co-operation among Governments in the field of 
governmental  regulation  and  practices  relating  to  technical  matters  of  all  kinds  affecting 
shipping engaged in international trade, and to encourage the general adoption of the highest 
practicable  standards  in  matters  concerning  maritime  safety,  efficiency  of  navigation  and 
prevention and control of marine pollution from ships, promoting a level playing field; and to 
deal with related administrative and legal matters.     

The Convention entered into force on 17 March, 1958. 

All Member States are parties to the Convention.  

All  Member  States  are  parties  to  the  International  Convention  for  the  Safety  of  Life  at  Sea 
('SOLAS'),  1974,  which  entered  into  force  on  25  May  1980.  The  Union  is  not  a  party  to 
SOLAS.  

2.2. 

The International Maritime Organization  

The International Maritime Organization (IMO) is the United Nations specialized agency with 
responsibility for the safety and security of shipping and the prevention of marine pollution by 
ships.  It  is  the  global  standard-setting  authority  for  the  safety,  security  and  environmental 
performance  of  international  shipping.  Its  main  role  is  to  create  a  regulatory  framework  for 
the  shipping  industry  that  is  fair  and  effective,  universally  adopted  and  universally 
implemented.  

Membership in the Organization is open to all States and all EU Member States are members 
of  the  IMO.  The  European  Commission  has  held  an  observer  status  in  the  International 
Maritime  Organisation  (IMO)  since  1974  on  the  basis  of  an  Arrangement  for  Co-operation 
and  Collaboration  between  the  Inter-Governmental  Maritime  Consultative  Organisation 
(IMCO)1 and the Commission of the European Communities on matters of mutual interest to 
the parties. 

The  IMO  Maritime  Safety  Committee  consists  of  all  the  IMO  Members  and  meets  at  least 
once a year. It considers any matter within the scope of the Organization concerned with aids 
to navigation, construction and equipment of vessels, manning from a safety standpoint, rules 
for  the  prevention  of  collisions,  handling  of  dangerous  cargoes,  maritime  safety  procedures 

1 

The name was changed in 1982 to International Maritime Organization (IMO). 

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and  requirements,  hydrographic  information,  log-books  and  navigational  records,  marine 
casualty investigation, salvage and rescue, and any other matters directly affecting maritime 
safety.  

The IMO Maritime Safety Committee provides machinery for performing any duties assigned 
to it by the IMO Convention, the IMO Assembly or the IMO Council, or any duty within the 
above scope which may be assigned to it by or under any other international instrument and 
accepted  by  the  IMO.  Decisions  of  the  Maritime  Safety  Committee,  and  of  its  subsidiary 
bodies shall be adopted by a majority of the Members.  

2.3. 

The envisaged act of the IMO Maritime Safety Committee 

On 16 to 25 May 2018, during its 99th session (MSC 99), the Maritime Safety Committee is 
to  adopt  amendments  to  SOLAS  regulations  II-1/1  and  II-1/8-1  and  relevant  guidelines  on 
computerized stability support for the master in case of flooding for existing passenger ships 
and to the International Code for Application of Fire Test Procedures, 2010 (2010 FTP Code).  

The  purpose  of  the  envisaged  amendments  to  SOLAS  regulations  II-1/1  and  II-1/8-1  is  to 
extend  the  requirement  in  SOLAS  regulation  II-1/8-1.3  regarding  computerized  stability 
support for the master in case of flooding to existing passenger ships.  

The purpose of the envisaged amendment to the 2010 FTP Code is to remove the distinction 
on fire  protection requirements in the Code between  ships with  less than 36 passengers  and 
ships  with  more  than  36  passengers,  in  order  to  clarify  the  application  of  requirements  for 
exposed floor coverings in Annex 3, Table 1 of the 2010 FTP Code to passenger ships, so that 
the requirements will also apply to passenger ships with less than 36 passengers.  

3. 

3.1. 

POSITION TO BE ADOPTED ON THE UNION’S BEHALF 

Amendments to SOLAS regulations II-1/1 and II-1/8-1 and relevant guidelines 
on computerized stability support for the master in case of flooding for existing 
passenger ships 

During  the  94th  session  of  the  Maritime  Safety  Committee  (MSC  94),  which  took  place  in 
London 17 – 21 November 2014, Bahamas et al made a successful request for a new output 
(MSC 94/6/1) concerning amendments to SOLAS regulations II-1/1 and II-1/8-1.  

Subsequently, the third session of the IMO Sub-Committee on Ship Design and Construction 
(SDC 3), which took place in London 18 – 22 January 2016, noted that the Working Group on 
Subdivision and Damage Stability had only been able to briefly discuss the proposal to extend 
the requirement in SOLAS regulation II-1/8-1.3 regarding computerized stability support for 
the  master  in  case  of  flooding  to  existing  passenger  ships,  which  concerns  support  to  the 
master with regularly updated information on the residual damage stability of the ship after a 
flooding incident.  

While it had been expressed in the Working Group on Subdivision and Damage Stability that 
the proposed amendments to SOLAS regulation II-1/8-1.3 were sufficient to be considered for 
finalization  at  the  4th  session  of  the  IMO  Sub-Committee  on  Ship  Design  and  Construction 
(SDC  4),  SDC  3  also  noted  that  further  consideration  would  be  necessary  regarding 
implementation  of  the  draft  revised  Guidelines  on  operational  information  for  masters  of 
passenger  ships  for  safe  return  to  port  by  own  power  or  under  tow  (MSC.1/Circ.1400)  on 
existing passenger ships and invited submissions to SDC 4.  

SDC  4,  which  took  place  in  London  13  –  17  February  2017,  having  discussed  how  the 
applicability  of  SOLAS  regulation  II-1/8-1.3  should  be  implemented  for  existing  passenger 
ships,  endorsed  the  view  that  any  limitations  of  applicability  of  the  current  guidelines,  i.e. 

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MSC.1/Circ.1400, MSC.1/Circ.1532 and MSC.1/Circ.1229, should be addressed by means of 
developing  a  new  set  of  guidelines  on  stability  computers  and  shore-based  support  for 
passenger ships constructed before 1 January 2014. 

SDC  4  agreed  to  the  draft  amendments  to  SOLAS  regulations  II-1/1  and  II-1/8-1  related  to 
computerized stability support for the master in case of flooding for existing passenger ships 
(SDC 4/16, annex 2), but was not able to decide on the procedure for entry-into-force of the 
proposed  amendments,  owing  to  the  fact  that  the  complexity  of  the  criteria  for  stability 
computers in the new set of guidelines would have an impact on the date from which the new 
draft regulations for existing passenger ships could be applied. 
The 98th session of the Maritime Safety Committee (MSC 98), which took place in London on 
7  –  16  June  2017,  approved  the  draft  amendments  to  SOLAS  regulations  II-1/1  and  II-1/8-
1with  a  view  to  adoption  at  MSC  99,  subject  to  the  requirement  that  the  5th  session  of  the 
IMO Sub-Committee on Ship Design and Construction (SDC 5), would confirm the date from 
which the draft SOLAS regulation II-1/8-1.3 will be applied and finalize the draft guidelines 
on  stability  computers  and  shore-based  support  for  passenger  ships  constructed  before  1 
January  2014.  SDC  5,  which  took  place  in  London  on  22  –  26  January  2018,  agreed  that 
passenger ships constructed before 1 January 2014 shall comply with SOLAS Regulation II-
1/8-1.3.1  not  later  than  the  first  renewal  survey  after  five  years  after  the  date  of  entry  into 
force. SDC 5 furthermore agreed to submit the associated guidelines to MSC 99 for approval.  

The amendments to SOLAS regulations  II-1/1 and II-1/8-1 are set out in Annex 13 to IMO 
Document  MSC  98/23/Add.1.  Paragraph  10.9  of  the  MSC  98  report  (MSC  98/23)  indicates 
that the amendments are foreseen to be adopted at MSC 99. 

3.2. 

Amendments to the 2010 FTP Code 

The third session of the IMO Sub-Committee on Ship Systems and Equipment (SSE 3), which 
took place in London 14 – 18 March 2016, considered that the provisions on requirements for 
exposed floor coverings in Annex 3, Table 1 of the 2010 FTP Code, which apply to passenger 
ships  carrying  more  than  36  passengers,  should  also  apply  to  passenger  ships  carrying  less 
than 36 passengers. SSE 3 endorsed the view that guidance on the requirements for exposed 
floor  coverings  applicable  to  passenger  ships  carrying  more  than  36  should  also  apply  to 
passenger ships carrying less than 36 passengers. Subsequently, SSE 3 agreed to instruct the 
Working  Group  on  Fire  Protection  to  further  consider  the  matter  and  advise  the  Sub-
Committee accordingly. 

With regard to the provisions of Annex 3, Table 1, of the 2010 FTP Code, and considering the 
view of the Working Group on Fire Protection SSE 3 agreed that Annex 3, Table 1 the 2010 
FTP Code should also be applicable to passenger ships carrying less than 36 passengers and 
that the possible solution could be to delete the phrase "carrying more than 36 passengers".  
However,  this  possible  solution  was  not  reported  to  the  97th  session  of  the  Maritime  Safety 
Committee  (MSC  97),  which  took  place  in  London  21  –  25  November  2016  as  SSE  3  had 
considered the matter under the agenda item on "Unified interpretation of provisions of IMO 
safety, security, and environment related conventions". 

Instead MSC 98 considered the proposed  amendments to the 2010 FTP Code and approved 
them with a view to adoption at MSC 99. 

The amendments to the 2010 FTP Code are set out in Annex 25 of the MSC 98 report (MSC 
98/23/Add.1).  Paragraph  12.47  of  the  MSC  98  report  (MSC  98/23)  indicates  that  the 
amendments are foreseen to be adopted at MSC 99.  

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3.3. 

Relevant EU legislation and EU competence 

3.3.1.  Amendments  to  SOLAS  regulations  II-1/1  and  II-1/8-1  and  relevant  guidelines  on 
computerized  stability  support  for  the  master  in  case  of  flooding  for  existing 
passenger ships 

Article 6(2)(a)(i) of Directive 2009/45/EC of the European Parliament and of the Council on 
safety rules and standards for passenger ships establishes that new passenger ships of Class A 
are to comply entirely with the requirements of the 1974 SOLAS Convention, as amended. 

3.3.2.  Amendments to the 2010 FTP Code 

The  2010  FTP  Code  provides  the  international  requirements  for  laboratory  testing, type-
approval and fire  test procedures for products referenced under SOLAS  chapter II-2 (which 
includes regulations on fire protection, fire detection and fire extinction). Amendments to the 
International  Convention  for  the  Safety  of  Life  at  Sea  (SOLAS)  to  make  the  International 
Code  for  the  Application  of  Fire  Test  Procedures  (2010  FTP  Code)  mandatory  came  into 
force on 1 July 2012 (Resolution MSC.307(88). 

Article 6(2)(a)(i) of Directive 2009/45/EC of the European Parliament and of the Council on 
safety rules and standards for passenger ships establishes that new passenger ships of Class A 
are  to  comply  entirely  with  the  requirements  of  the  1974  SOLAS  Convention,  as  amended. 
Furthermore, Chapter II-2, Part A and Part B of Annex I of Directive 2009/45/EC applies the 
Fire  Safety  Systems  Code  adopted  by  Resolution  MSC.98(73),  to  Class  B,  C  and  D  ships 
constructed on or after 1 January 2003. 

3.3.3.  EU competence 

The  amendments  to  SOLAS  regulations  II-1/1  and  II-1/8-1  and  relevant  guidelines  on 
computerized stability support for the master in case of flooding for existing passenger ships 
and  to  the  2010  FTP  Code  would  affect  EU  law  through  the  application  of  Directive 
2009/45/EC. 

4. 

LEGAL BASIS 

4.1. 

Procedural legal basis 

4.1.1.  Principles 

Article 218(9) of the Treaty on the Functioning of the European Union (TFEU) provides for 
decisions establishing ‘the positions to be adopted on the Union’s behalf in a body set up by 
an  agreement,  when  that  body  is  called  upon  to  adopt  acts  having  legal  effects,  with  the 
exception of acts supplementing or amending the institutional framework of the agreement.’ 

Article 218(9) TFEU applies regardless of whether the Union is a member of the body or a 
party to the agreement.2 

The concept of ‘acts having legal effects’ includes acts that have legal effects by virtue of the 
rules of international law governing the body in question. It also includes instruments that do 
not  have  a  binding  effect  under  international  law,  but  that  are  ‘capable  of  decisively 
influencing the content of the legislation adopted by the EU legislature’.3 

2 
3 

Case C-399/12 Germany v Council (OIV), ECLI:EU:C:2014:2258, paragraph 64.  
Case C-399/12 Germany v Council (OIV), ECLI:EU:C:2014:2258, paragraphs 61-64.  

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4.1.2.  Application to the present case 

The  IMO  Maritime  Safety  Committee  is  a  body  set  up  by  an  agreement,  namely  the 
Convention on the International Maritime Organization.  

The acts which the  IMO Maritime Safety Committee is called upon to adopt  constitute acts 
having legal effects. The envisaged acts are capable of decisively influencing the content of 
EU legislation, namely Directive 2009/45/EC of the European Parliament and of the Council 
on  safety  rules  and  standards  for  passenger  ships.  This  is  because  Directive  2009/45/EC 
establishes that new passenger ships of Class A are to comply entirely with the requirements 
of the 1974 SOLAS Convention, as amended, as set out in points 3.1 and 3.2 above.  

Therefore, the amendments to SOLAS regulations II-1/1 and II-1/8-1 and relevant guidelines 
on  computerized  stability  support  for  the  master  in  case  of  flooding  for  existing  passenger 
ships  and  to  the  2010  FTP  Code  would  affect  EU  law  through  the  application  of  Directive 
2009/45/EC. 

The envisaged acts do not supplement or amend the institutional framework of the agreement. 

Therefore, the procedural legal basis for the proposed decision is Article 218(9) TFEU. 

4.2. 

Substantive legal basis 

4.2.1.  Principles 

The  substantive  legal  basis  for  a  decision  under  Article  218(9)  TFEU  depends  primarily  on 
the  objective  and  content  of  the  envisaged  act  in  respect  of  which  a  position  is  adopted  on 
behalf of the Union. If the envisaged act pursues two aims or has two components and if one 
of  those  aims  or  components  is  identifiable  as  the  main  one,  whereas  the  other  is  merely 
incidental, the decision under Article 218(9) TFEU must be founded on a single substantive 
legal basis, namely that required by the main or predominant aim or component. 

4.2.2.  Application to the present case 

The  main  objective  and  content  of  the  envisaged  act  relate  to  sea  transport.  Therefore,  the 
substantive legal basis of the proposed decision is Article 100(2) TFEU 

4.3. 

Conclusion 

The legal basis of the proposed decision should be Article 100(2) TFUE, in conjunction with 
Article 218(9) TFEU. 

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2018/0056 (NLE) 

Proposal for a 

COUNCIL DECISION 

on the position to be taken on behalf of the European Union during the 99th session of 
the International Maritime Organization's Maritime Safety Committee on the adoption 
of amendments to SOLAS regulations II-1/1 and II-1/8-1, the approval of relevant 
guidelines on computerised stability support for the master in case of flooding for 
existing passenger ships and on the adoption of amendments to the International Code 
for Application of Fire Test Procedures, 2010 

THE COUNCIL OF THE EUROPEAN UNION, 

Having  regard  to  the  Treaty  on  the  Functioning  of  the  European  Union,  and  in  particular 
Article 100(2), in conjunction with Article 218(9) thereof, 

Having regard to the proposal from the European Commission, 

Whereas: 

(1) 

(2) 

(3) 

(4) 

(5)  

 (6) 

(7) 

Action  by  the  Union  in  the  sector  of  maritime  transport  should  aim  at  improving 
maritime safety. 

The Convention on the International Maritime Organization (‘IMO’) entered into force 
on 17 March 1958. 

The  IMO  is  a  specialised  agency  of  the  United  Nations  with  responsibility  for  the 
safety  and  security  of  shipping.  Pursuant  to  Article  28(b)  of  the  Convention  on  the 
International Maritime Organization, the Maritime Safety Committee, a committee of 
the  IMO,  provides  machinery  for  the  performance  of  any  duties  assigned  to  it  in 
accordance  with  that  Convention,  by  the  IMO  Assembly  or  by  the  IMO  Council,  or 
any  duty  within  the  scope  of  that  Article  which  may  be  assigned  to  the  Maritime 
Safety Committee under any other international instrument and accepted by the IMO. 

The  International  Convention  for  the  Safety  of  Life  at  Sea  (‘SOLAS  Convention’) 
entered into force on 25 May 1980. 

Pursuant to Article VIII(b)(iii) of the SOLAS Convention, the IMO’s Maritime Safety 
Committee may adopt amendments to the SOLAS Convention. 
The Maritime Safety Committee, during its 99th session on 16 – 25 May 2018 (MSC 
99) is to adopt amendments to SOLAS regulations II-1/1 and II-1/8-1 and the relevant 
guidelines on computerised stability support for the master in the event of flooding for 
existing  passenger  ships  and  the  International  Code  for  Application  of  Fire  Test 
Procedures, 2010 ('FTP Code').  

It  is  appropriate  to  establish  the  position  to  be  taken  on  the  Union’s  behalf  during 
MSC 99, as the amendments to SOLAS regulations II-1/1 and II-1/8-1 and the relevant 
guidelines on computerised stability support for the master in the event of flooding for 
existing passenger  ships and the FTP Code will be capable of decisively influencing 

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(8) 

(9) 

the  content  of  Union  law,  namely  Directive  2009/45/EC  of  the  European  Parliament 
and of the Council4. 

The  amendments  to  SOLAS  regulations  II-1/1  and  II-1/8-1  and  the  guidelines  on 
computerised  stability  concerning  support  to  the  master  by  providing  regularly 
updated  information  on  the  residual  damage  stability  of  the  ship  after  a  flooding 
incident should create operational guidelines for existing passenger ships. 

The amendments to the FTP Code, concerning testing requirements for exposed floor 
coverings  should  provide  that  those  provisions  should  also  apply  to  passenger  ships 
carrying less than 36 passengers.  

(10)  The Union’s position is to  be expressed by the Member States  of the Union  that are 

members of the IMO’s Maritime Safety Committee, acting jointly.  

HAS ADOPTED THIS DECISION: 

Article 1 

The  positions  to  be  taken  on  the  Union’s  behalf  in  the  99th  session  of  the  IMO’s Maritime 
Safety Committee shall be the following:  

(a)  To  agree  to  the  amendments  to  SOLAS  regulations  II-1/1  and  II-1/8-1  and  the  relevant 
guidelines  laid  down  in  Annex  13  to  IMO  Document  MSC  98/23/Add.1  attached  to  this 
Decision; 

(b)  To  agree  to  the  amendments  to  Table  1  of  Annex  3  to  the  International  Code  for 
Application  of  Fire  Test  Procedures,  2010  laid  down  in  Annex  25  to  IMO  Document  MSC 
98/23/Add.1 attached to this Decision. 

Article 2 

1. The positions referred to in points (a) and (b) of Article 1 shall be expressed by the Member 
States  of  the  Union  that  are  members  of  the  IMO’s  Maritime  Safety  Committee,  acting 
jointly.  

2. Minor changes to the positions referred to in points (a) and (b) of Article 1 shall be agreed 
upon without further decision of the Council.  

This Decision is addressed to the Member States. 

Done at Brussels, 

For the Council 
The President 

4 

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). 

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