Proposal for a REGULATION OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL amending Regulation (EC) No 391/2009 with regard to the withdrawal of the United Kingdom from the Union
Date: 2018-08-01
Institutions: Directorate-General for Mobility and Transport, European Commission
Subjects: United Kingdom, administrative check, application of EU law, maritime safety, pollution from ships, prevention of pollution, supervisory body, technical regulations, vessel, withdrawal from the EU

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   EUROPEAN COMMISSION  Brussels, 1.8.2018 COM(2018) 567 final 2018/0298 (COD)  Proposal for a REGULATION OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL amending Regulation (EC) No 391/2009 with regard to the withdrawal of the United Kingdom from the Union (Text with EEA relevance)  
 
 
EXPLANATORY MEMORANDUM 

1. 

• 

CONTEXT OF THE PROPOSAL 

Reasons for and objectives of the proposal 

On  29 March  2017,  the  United  Kingdom  submitted  notification  of  its  intention  to  withdraw 
from  the  Union  pursuant  to  Article 50  of  the  Treaty  on  European  Union.  This  means  that, 
unless  a  ratified  withdrawal  agreement  establishes  another  date,  all  Union  primary  and 
secondary  law  will  cease  to  apply  to  the  United  Kingdom  from  30 March  2019,  (‘the 
withdrawal date’). The United Kingdom will then become a third country. 

Subject  to  any  transitional  arrangements  that  may  be  contained  in  a  withdrawal  agreement, 
EU legislation on maritime transport will no longer apply to the United Kingdom. One of the 
areas  of  Union  law  that  would  be  affected  is  the  recognition  at  the  Union  level  of 
organisations  providing  services  for  the  inspection  and  survey  of  ships  flying  the  flag  of 
Member States ("Recognised Organisations").  
In  particular, Article 8(1) of Regulation  (EC) No 391/20091  (‘the Regulation’) requires ship 
inspection and survey organisations recognised at EU level by the Commission (‘recognised 
organisations’) to be assessed at least every two years by the Commission together with the 
Member  State  that  submitted  the  initial  request  for  recognition  of  the  organisation. 
Organisations  which  were  initially  recognised  by  the  relevant  Member  State  under  the 
previous  legislation  and  which  presently  enjoy  EU  recognition  under  Article 15(1)  of  the 
Regulation should be assessed in the same way. As a result, the Member State which initially 
recognised  these  organisations,  under  Article 15(1),  should  be  considered  the  ‘sponsor’ 
Member  State  that  participates  in  the  Commission’s  assessment  under  Article 8(1)  of  the 
Regulation. 

Moreover,  it  follows  from  Articles  7  and  8  of  the  Regulation  that  in  order  to  continue 
enjoying  EU  recognition,  recognised  organisations  must  continue  to  meet  the  requirements 
and  minimum  criteria  set  out  in  Annex  I  of  the  Regulation.  This  is  verified  through  the 
continuous  re-assessment  conducted  by  the  Commission  and  the  ‘sponsor’  Member  State 
under Article 8(1). 

As of its withdrawal, the United Kingdom will no longer be in a position to participate in the 
assessments carried out pursuant to Article 8(1) of the Regulation for those organisations for 
which the United Kingdom acts as the ‘sponsor’ Member State. Consequently, the continued 
validity  of  the  recognition  for  these  organisations  at  EU  level  could  be  called  into  question 
and could not be clarified with sufficient legal certainty under the existing provisions of the 
Regulation. 

Organisations’  potential  loss  of  EU  recognition  due  to  the  United  Kingdom’s  withdrawal 
could have adverse consequences for the competitiveness and appeal of the EU-27 Member 
States' flags that have authorised these Recognised Organisations to act on their behalf for the 
purposes of carrying out statutory ship inspections, surveys and certification. The recognised 
organisations affected currently have authorisation agreements with the majority of the EU-27 
Member States and after the United Kingdom’s withdrawal they would not be able to make 
use of these Recognised Organisations for their flagged fleet. At the same time, shipowners 
using  these  organisations  also  for  classification  purposes  would  face  the  dilemma  of  either 
out-flagging their ships to a non-EU flag or risking breaching their current private contracts 
for classification of their ships with the relevant organisations. 

1  Regulation (EC) 391/2009 of the European Parliament and of the Council of 23 April 2009 on common rules 

and standards for ship inspection and survey organisations (OJ L 131, 28.5.2009, p. 11). 

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This  proposal  aims  to  increase  legal  certainty,  secure  business  continuity  for  the  affected 
shipowners and maintain the competitiveness of EU-27 Member States’ flags. 

• 

Consistency with existing policy provisions in the policy area 

This proposal is necessitated by the withdrawal of the United Kingdom from the Union and its 
scope  is  limited  to  addressing  the  relevant  consequences.  The  main  policy  objectives  of  the 
Regulation remain unchanged. 

• 

Consistency with other Union policies 

This  proposal  is  fully  consistent  with  the  Council  mandate  for  the  negotiations  with  the 
United Kingdom on its withdrawal from the Union. 

2. 

• 

LEGAL BASIS, SUBSIDIARITY AND PROPORTIONALITY 

Legal basis 

The proposal is based on Article 100(2) TFEU. 

• 

Subsidiarity (for non-exclusive competence) 

As the proposed act would  modify the content of the existing Union act, this could only  be 
achieved through action at the Union level. 

• 

Proportionality 

The proposal is considered proportionate as it provides for the necessary legal change without 
going beyond the necessary to achieve the objective of lifting the legal uncertainty created by 
the  United  Kingdom’s  withdrawal  from  the  Union.  It  provides  for  the  necessary  legal 
amendments  in  order  to  safeguard  the  competitiveness  of  the  flags  of  the  EU-27  Member 
States. 

• 

Choice of the instrument 

Given that the act amends  a Regulation of the European Parliament and of the Council, the 
proposed amendment is the only adequate form. 

3. 

• 

RESULTS 
CONSULTATIONS AND IMPACT ASSESSMENTS 

EVALUATIONS, 

EX POST 

OF 

STAKEHOLDER 

Ex post evaluations/fitness checks of existing legislation 

Not applicable. 

• 

Stakeholder consultations 

The problems regarding the re-assessment process linked to the withdrawal of the UK from 
the union have been brought to the attention of the concerned stakeholders in a Commission 
notice on maritime transport2. 

2 

‘Notice  to  stakeholders  —  Withdrawal  of  the  United  Kingdom  and  EU  rules  in  the  field  of  maritime 
transport’, 

https://ec.europa.eu/transport/sites/transport/files/legislation/brexit-notice-to-stakeholders-maritime-transport.pdf 

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The  stakeholders  concerned  and  the  Member  States  were  given  the  opportunity  to  provide 
feedback on the proposed initiative via the European Commission’s Better Regulation portal 
(‘Have your say’) for a period of two weeks. 

During  the  feedback  period  from  28  June  to  12  July  2018,  one  stakeholder  provided 
comments.  The  intention  of  creating  more  legal  certainty  and  clarity  through  the  proposed 
initiative  and  of  maintaining  the  competitiveness  of  EU27  ship-owners  was  generally 
appreciated. The feedback was taken into consideration in drafting the proposal as relevant. 

• 

Collection and use of expertise 

Feedback as well as technical expertise was collected from stakeholders and Member States 
as well as from the European Maritime Safety Agency. The proposal was also underpinned by 
legal analysis of the consequences of the United Kingdom’s withdrawal in the policy area of 
recognised organisations. 

• 

Impact assessment 

Under  the  Better  Regulation  Guidelines,  an  impact  assessment  is  not  needed,  because  the 
envisaged measure is not expected to have significant impact and there are no other materially 
different policy options available except for the one proposed. 

• 

Fundamental rights 

This proposal has no consequences for the protection of fundamental rights. 

4. 

BUDGETARY IMPLICATIONS 

Not applicable. 

5. 

• 

OTHER ELEMENTS 

Implementation plans and monitoring, evaluation and reporting arrangements 

In  order  to  evaluate  whether  the  current  initiative  has  attained  the  above  objective  without 
creating any unintended consequences for competition, a review clause has been introduced in 
Article 2 of the proposal. 

• 

Detailed explanation of the specific provisions of the proposal 

The  proposal  aims  to  resolve  the  legal  uncertainty  created  by  the  United  Kingdom's 
withdrawal in relation to the continued validity of the recognition for organisations for which 
the  United  Kingdom  acts  as  the  ‘sponsor’  Member  State  participating  in  the  Commission’s 
assessment.  This  would  allow  the  continuation  of  existing  arrangements  between  those 
organisations and the EU-27 Member States that have signed authorisation agreements, thus 
allowing these organisations to conduct ship inspections and surveys on the Member States’ 
behalf, upholding uninterrupted safety. 

The  proposed  legislative  measure  would  amend  Article 8(1)  of  the  Regulation  by  replacing 
the current requirement, under which only the ‘sponsor’ Member State shall participate in the 
regular assessment process conducted by the Commission, by introducing the   participation 
of  any  Member  State  which  has  authorised  one  of  the  Recognised  Organisations.  It  would 
allow  the  assessment  to  be  carried  out  by  the  Commission  together  with  any  Member  State 

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which has authorised the relevant recognised organisation to act on its behalf for the purposes 
of Article 3(2) of Directive 2009/15/EC3, and not only the ‘sponsor’ Member State. 

The above solution was chosen as the most effective and efficient way of addressing the legal 
uncertainty  created  in  the  area  of  recognised  organisations  by  the  United  Kingdom's 
withdrawal.  The  proposed  act  would  resolve  that  legal  uncertainty  in  a  non-discriminatory 
way  for  the  Member  States  that  have  authorised  recognised  organisations  to  act  on  their 
behalf. 

In  addition,  the  proposal  meets  the  objective  of  safeguarding  business  continuity  and  the 
competitiveness  of  the  flags  of  the  EU-27  Member  States  working  with  the  affected 
organisations will be attained.  

The Regulation should only rectify the potential adverse consequences caused/brought about 
by the United Kingdom’s withdrawal from the Union on the flags of the 27 Member States. 
The Commission should report on its effects after an adequate/sufficient period of application, 
in particular with a view to identifying any consequences which could go beyond the scope of 
this Regulation. 

3  Directive 2009/15/EC of the European Parliament and of the Council of 23 April 2009 on common rules and 
standards  for  ship  inspection  and  survey  organisations  and  for  the  relevant  activities  of  maritime 
administrations (OJ L 131, 2009, p. 47). 

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2018/0298 (COD) 

Proposal for a 

REGULATION OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL 

amending Regulation (EC) No 391/2009 with regard to the withdrawal of the United 
Kingdom from the Union 

(Text with EEA relevance) 

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 Committee1, 
Having regard to the opinion of the Committee of the Regions2, 

Acting in accordance with the ordinary legislative procedure, 

Whereas: 

(1) 

(2) 

(3) 

On 29 March 2017, the United Kingdom notified the European Council of its intention 
to withdraw from the Union pursuant to Article 50 of the Treaty on European Union. 
Consequently,  unless  another  date  is  established  in  a  withdrawal  agreement,  or  the 
European  Council,  in  agreement  with  the  United  Kingdom,  unanimously  establishes 
another  date,  Union  law  will  cease  to  apply  to  the  United  Kingdom  from  30 March 
2019. The United Kingdom will then become a third country. 
Regulation (EC) No 391/20093 and Directive 2009/15/EC of the European Parliament 
and of the Council4 together constitute the regulatory framework for the activities of 
recognised ship inspection, survey and certification organisations. 

In accordance with Article 8(1) of Regulation (EC) No 391/2009, ship inspection and 
survey  organisations  recognised  at  Union  level  by  the  Commission  (‘recognised 
organisations’) are to be assessed on a regular basis and at least every two years by the 
Commission,  together  with  the  Member  State  that  submitted  the  relevant  request  for 
recognition of the organisation. 

(4) 

For  reasons  of  equal  treatment,  organisations  which  were  initially  recognised  by  the 
relevant Member State in accordance with Council Directive 94/57/EC5 and currently 

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3  Regulation (EC) 391/2009 of the European Parliament and of the Council of 23 April 2009 on common rules 

OJ C , , p. . 
OJ C , , p. . 

and standards for ship inspection and survey organisations (OJ L 131, 28.5.2009, p. 11). 

4  Directive 2009/15/EC of the European Parliament and of the Council of 23 April 2009 on common rules and 
standards  for  ship  inspection  and  survey  organisations  and  for  the  relevant  activities  of  maritime 
administrations (OJ L 131, 2009, p. 47). 

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(5) 

(6) 

(7) 

(8) 

enjoy Union recognition under Article 15(1) of Regulation (EC) No 391/2009, should 
be  assessed  by  the  Commission,  together  with  the  Member  State  which  initially 
recognised those organisations. 

In  accordance  with  Articles  7  and  8  of  Regulation  (EC)  No  391/2009,  in  order  to 
continue to benefit from Union recognition, recognised organisations must continue to 
fulfil  the  requirements  and  minimum  criteria  set  out  in  Annex  I  to  that  Regulation. 
This  is  verified  through  the  continuous  assessment  carried  out  by  the  Commission, 
together with the relevant Member State, in accordance with Article 8(1) of Regulation 
(EC)  No  391/2009.  Therefore,  regular  assessments  play  an  important  role  for 
continued recognition of organisations. 

Following its withdrawal from the Union, the United Kingdom will no longer be able 
to  participate  in  the  assessments  carried  out  pursuant  to  Article 8(1)  of  Regulation 
(EC) No 391/2009. 

The recognised organisations which were initially recognised by the United Kingdom 
currently  enjoy  Union  recognition  and  have  been  entrusted  by  other  Member  States 
with  duties  in  relation  to  the  inspection,  survey  and  certification  of  ships,  in 
accordance  with  Article 3(2)  of  Directive  2009/15/EC.  It  is  therefore  necessary  to 
amend Article 8(1)  of  Regulation  (EC)  No  391/2009  in  order  to  ensure  that  those 
organisations  will  continue  to  be  subject  to  assessment  in  accordance  with  the 
requirements of that provision. 

It is also necessary to take into account the monitoring and oversight obligations that 
Member States currently have to fulfil under Article 9 of Directive 2009/15/EC. In this 
regard,  the  assessment  of  recognised  organisations  under  Regulation  (EC)  No 
391/2009 should be conducted by the Commission together with the Member State or 
Member  States  which  authorised  the  relevant  recognised  organisation  in  accordance 
with Article 3(2) of Directive 2009/15/EC. 

(9) 

This Regulation should apply from the day following that on which Union law, and in 
particular Regulation (EC) No 391/2009, ceases to apply to the United Kingdom, 

HAVE ADOPTED THIS REGULATION: 

Article 1 

In Article 8 of Regulation (EC) No 391/2009, paragraph 1 is replaced by the following: 

‘1.  All the recognised organisations shall be assessed  by the Commission,  together with  the 
Member  State(s)  which  authorised  them  in  accordance  with  Article 3(2)  of  Directive 
2009/15/EC,  on  a  regular  basis  and  at  least  every  two  years  to  verify  that  they  meet  the 
obligations  under  this  Regulation  and  fulfil  the  minimum  criteria  set  out  in  Annex  I.  The 
assessment  shall  be  confined  to  those  activities  of  the  recognised  organisations,  which  fall 
within the scope of this Regulation. 

The Commission shall report to the European Parliament and the Council on the effects of this 
Regulation not later than three years following its date of application. 

Article 2 

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Council Directive 94/57/EC of 22 November 1994 on common rules and standards for ship inspection 
and  survey  organisations  and  for  the  relevant  activities  of  maritime  administrations  (OJ  L  319, 
12.12.1994, p. 20). 

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

Article 3 

It shall apply from the day following that on which Union law ceases to apply to the United 
Kingdom. 

This Regulation shall be binding in its entirety and directly applicable in all Member States. 

Done at Brussels, 

For the European Parliament 
The President 

For the Council 
The President 

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