Proposal for a COUNCIL DECISION Amending Council Decision (EU) 2020/721 of 19 May 2020 to include the position to be taken on behalf of the European Union in the International Maritime Organization during the 75th session of the Marine Environment Protection Committee and the 102nd session of the Maritime Safety Committee on the approval of a MSC-MEPC.5 circular on a Model Agreement for the authorisation of Recognised Organisations acting on behalf of the Administration
Date: 2020-09-28
Institutions: Directorate-General for Mobility and Transport, European Commission
Subjects: International Maritime Organisation, circular, institutional activity, international convention, marine pollution, maritime safety, pollution from ships, revision of an agreement, safety standard, technical standard

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   EUROPEAN COMMISSION  Brussels, 28.9.2020  COM(2020) 586 final 2020/0271 (NLE)  Proposal for a COUNCIL DECISION Amending Council Decision (EU) 2020/721 of 19 May 2020 to include the position to be taken on behalf of the European Union in the International Maritime Organization during the 75th session of the Marine Environment Protection Committee and the 102nd session of the Maritime Safety Committee on the approval of a MSC-MEPC.5 circular on a Model Agreement for the authorisation of Recognised Organisations acting on behalf of the Administration  
 
EXPLANATORY MEMORANDUM 

SUBJECT MATTER OF THE PROPOSAL 

1. 
This proposal concerns an amendment to Council Decision (EU) 2020/721 of 19 May 20201 
establishing  the  position  to  be  taken  on  the  Union's  behalf  at  the  102nd  session  of  the 
International  Maritime  Organization’s  Maritime  Safety  Committee  (MSC  102),  which  will 
now  take  place  in  London  from  4  to  11  November  2020  and  at  the  75th  session  of  the 
International  Maritime  Organization’s  Marine  Environment  Protection  Committee  (MEPC 
75), which will now take place in London from 16 to 20 November 2020, in connection with 
the  envisaged  adoption  of  an  MSC-MEPC.5  Circular  on  a  Model  Agreement  for  the 
authorisation of Recognised Organisations acting on behalf of the Administration 

Context of the proposal 

1.1. 

The Convention on the International Maritime Organization  

The Convention on the International Maritime Organization (IMO) establishes the IMO. The 
IMO’s purpose is to provide a forum for co-operation in the field of regulation and practices 
relating to technical matters of all kinds affecting shipping engaged in international trade. It 
furthermore  aims  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.  It  also  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.  

All Member States are parties to the International Convention for the Prevention of Pollution 
from  Ships  (‘MARPOL’),  1973,  which  entered  into  force  on  2  October  1983  and  to  Annex 
VI, which entered into force on 18 May 2005. The Union is not a party to MARPOL.  

1.2. 

The International Maritime Organization  

The  International  Maritime  Organization  (IMO)  is  the  United  Nations’  specialised  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.  

1 

Council Decision (EU) 2020/721 of 19 May 2020 on the position to be taken on behalf of the European 
Union  within  the  International  Maritime  Organization’s  Marine  Environment  Protection  Committee 
during  its  75th  session  and  within  the  International  Maritime  Organization’s  Maritime  Safety 
Committee during its 102nd session as regards the adoption of amendments to regulations 2, 14 and 18 
and appendices I and VI of Annex VI to the International Convention for the Prevention of Pollution 
from Ships, Parts A-1, B, B-1, B-2 to B-4 of Chapter II-1 of the International Convention for the Safety 
of Life at Sea, Parts A-1 and B-1 of the International Code of Safety for Ships Using Gases or Other 
Low-flashpoint  Fuels  and  resolution  A.658(16)  on  the  use  and  fitting  of  retro-reflective  materials  on 
life-saving appliances (OJ L 171, 2.6.2020, p. 1–3) 

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

The  IMO  Maritime  Safety  Committee  also  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 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.  

The IMO’s Marine Environment Protection Committee consists of all the IMO Members and 
meets  at  least  once  a  year.  It  addresses  environmental  issues  under  the  scope  of  the 
organisation  as  regards  the  control  and  prevention  of  ship-source  pollution  covered  by  the 
MARPOL  treaty,  including  oil,  chemicals  carried  in  bulk,  sewage,  garbage  and  emissions 
from  ships  to  air,  including  air  pollutants  and  greenhouse  gas  emissions.  Other  matters 
covered  include  ballast  water  management,  anti-fouling  systems,  ship  recycling,  pollution 
preparedness  and  response,  and  identification  of  special  areas  and  particularly  sensitive  sea 
areas. 

The IMO Marine Environment Protection 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  Marine  Environment  Protection 
Committee, and of its subsidiary bodies shall be adopted by a majority of the Members.  

The envisaged act of the IMO’s Maritime Safety Committee 

1.3. 
On  4-11  November  2020,  during  its  102nd  session  (MSC  102),  the  Maritime  Safety 
Committee is to approve an MSC-MEPC.5 Circular, which will set out the Model Agreement 
for  Governments  to  use  to  authorise  Recognised  Organisations  acting  on  their  behalf.  The 
Circular  is  to  be  approved  jointly  by  the  Maritime  Safety  Committee  and  the  Marine 
Environment Protection Committee.  

In 2016, the Maritime Safety Committee approved a new work programme output to review 
and amend the Model Agreement for the authorisation of recognised organisations acting on 
behalf of the Administration in order to bring it into line with the requirements of the Code for 
Recognized  Organizations  (RO  Code).  The  draft  Model  Agreement  was  debated  at  several 
sessions  of  IMO’s  Sub  Committee  on  the  Implementation  of  IMO  Instruments  and  is  now 
before the Committee for approval.  

The envisaged act of the IMO’s Marine Environment Protection Committee 

1.4. 
On  16  –  20  November  2020,  during  its  75th  session  (MEPC  75),  the  Marine  Environment 
Protection  Committee  is  to  approve  the  same  MSC-MEPC.5  circular  setting  out  the  Model 

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Agreement  for  Governments  to  use  to  authorise  Recognised  Organisations  acting  on  their 
behalf.  

2. 

2.1. 

POSITION TO BE TAKEN ON THE UNION'S BEHALF 

Approval of the MSC-MEPC.5 Circular 
During  the  97th  session  of  the  Maritime  Safety  Committee  (MSC  97),  which  took 
place in London 21 – 25 November 2016, a new output was approved to review and 
amend the Model Agreement for the authorisation of recognised organisations acting 
on behalf of the Administration (MSC.1/Circ.710–MEPC.1/Circ.307) to bring it into 
line  with  the  requirements  of  the  RO  Code.  The  new  output  was  included  in  the 
biennial agenda for 2016-2017 of the Sub-Committee on the Implementation of IMO 
Instruments and in the provisional agenda for the 4th session of the Sub-Committee 
on  Implementation  of  IMO  Instruments  (III  4),  with  a  target  completion  year  of 
2018. 

III 4, which took place in London on 25 – 29 September 2017, decided to amend the 
Model  Agreement  using  an  IACS  paper  as  a  basis  and  formed  a  Correspondence 
Group  to  develop  the  text.  III  5,  which  took  place  in  London  on  24-28  September 
2018, finalised the draft Model Agreement and forwarded it to the 74th session of the 
Marine Environment Protection Committee (MEPC 74) and the 101st session of the 
Maritime Safety Committee (MSC 101) for approval.  

MEPC  74  deferred  consideration  of  the  draft  circular  to  MEPC  75  due  to  time 
constraints. MSC 101 debated the draft text, but due to strong objections from IACS 
that  their  proposed  substantive  amendments  were  not  accepted,  MSC  101  referred 
the draft with the proposed by IACS amendments back to the 6th session of the Sub-
Committee on the Implementation of IMO Instruments (III 6) for consideration. III 6, 
which took place in London on 1 – 5 July 2019, reviewed the draft Model Agreement 
and  the  IACS  proposals.  While  accepting  their  editorial  proposals,  it  rejected  the 
substantive proposals. III 6 then forwarded the draft Circular to MEPC 75 and MSC 
102 for approval.  

The Union should support the amendments to the IMO model agreement agreed by III 6. The 
new circular will supersede MSC/Circ.710 and MEPC/Circ.307, update the model agreement 
and bring it into line with the RO Code (resolutions MSC.349(92) and MEPC.237(65)). It will 
increase accuracy, transparency and accountability of both the flag administration and ROs at 
global level.  

2.2. 

Relevant EU legislation and EU competence 

The  Model  Agreement,  currently  set  out  in  MSC/Circ.710  and  MEPC/Circ.307,  is 
implemented  in  EU  law  in  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. Article 5 of Directive 
2009/15/EC provides: 

"1.  Member  States  which  take  a  decision  as  described  in  Article  3(2)  shall  set  out  a 
‘working relationship’ between their competent administration and the organisations acting on 
their behalf. 

2 
The  working  relationship  shall  be  regulated  by  a  formalised  written  and  non-
discriminatory agreement (…)including at least: (a) the provisions set out in Appendix II of 
IMO  Resolution  A.739(18)  on  guidelines  for  the  authorisation  of  organisations  acting  on 

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behalf  of  the  administration,  while  drawing  inspiration  from  the  Annex,  Appendices  and 
Attachment  to  IMO  MSC/Circ.710  and  MEPC/Circ.307  on  a  model  agreement  for  the 
authorisation of recognised organisations acting on behalf of the administration. […]" 

EU competence 

The replacement of MSC/Circ.710 and  MEPC/Circ.307 by the draft MSC-MEPC.5 Circular 
would  affect  EU  law  through  the  application  of  Directive  2009/15/EC  of  the  European 
Parliament  and  of  the  Council  of  23  April  2009  on  common  rules  and  standards  for  ship 
relevant  activities  of  maritime 
inspection  and  survey  organisations  and  for 
administrations. 

the 

The  Union,  therefore,  has  exclusive  competence  by  virtue  of  the  last  limb  of  Article  3(2) 
TFEU and it is, thus, necessary to establish the position of the Union on the acts adopting the 
above mentioned amendments.  

3. 

LEGAL BASIS 

3.1. 

Procedural legal basis 

3.1.1.  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 

3.1.2.  Application to the present case 

The IMO Marine Environment Protection Committee and the Maritime Safety Committee are 
bodies  set  up  by  an  agreement,  namely  the  Convention  on  the  International  Maritime 
Organization.  

The act which the IMO Marine Environment Protection Committee and the Maritime Safety 
Committee are called upon to adopt constitute an act having legal effects. The envisaged act is 
capable of decisively influencing the content of the following EU legislation 

– 

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.  

This  is  because 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 requires Member State administrations 
to regulate their working relationship with Recognised Organisations by a formalised written 

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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and  non-discriminatory  agreement,  which  must  draw  inspiration  from  the  model  agreement 
contained in MSC/Circ. 710 and MEPC/Circ. 307.  

Therefore, the new circular superseding MSC/Circ.710 and MEPC/Circ.307 would affect EU 
law through the application of 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. 

The  envisaged  act  does  not  supplement  or  amend  the  institutional  framework  of  the 
Agreement. 

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

3.2. 

Substantive legal basis 

3.2.1.  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 taken on the 
Union's behalf.  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. 

3.2.2.  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. 

3.3. 

Conclusion 

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

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2020/0271 (NLE) 

Proposal for a 

COUNCIL DECISION 

Amending Council Decision (EU) 2020/721 of 19 May 2020 to include the position to be 
taken on behalf of the European Union in the International Maritime Organization 
during the 75th session of the Marine Environment Protection Committee and the 102nd 
session of the Maritime Safety Committee on the approval of a MSC-MEPC.5 circular 
on a Model Agreement for the authorisation of Recognised Organisations acting on 
behalf of the Administration 

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) 

(8) 

Action  by  the  Union  in  the  sector  of  maritime  transport  should  aim  to  protect  the 
marine environment, human health and improve 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 and the prevention of marine and atmospheric pollution 
by ships. All Union Member States are members of the IMO. 

Pursuant  to  Article  28(b)  of  the  Convention  on  the  IMO,  the  Maritime  Safety 
Committee  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. 

Pursuant  to  Article  38(a)  of  the  Convention  on  the  IMO,  the  Marine  Environment 
Protection  Committee  performs  such  functions  as  are  or  may  be  conferred  upon  the 
IMO  by  or  under  international  conventions  for  the  prevention  and  control  of  marine 
pollution  from  ships,  particularly  with  respect  to  the  adoption  and  amendment  of 
regulations or other provisions.  

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 International Convention for the Prevention of Pollution from Ships (‘MARPOL 
Convention’) entered into force on 2 October 1983.  

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(9) 

Pursuant to Article 16(2)(c) of the MARPOL Convention, amendments thereto may be 
adopted  by  the  appropriate  body,  in  this  case  the  Marine  Environment  Protection 
Committee. 

(10)  The Maritime Safety Committee, during its 102nd session from 4 to 11 November 2020 
(‘MSC 102’) is to approve jointly with the Marine Environment Protection Committee 
an  MSC-MEPC.5  Circular  on  Model  Agreement  for  the  authorisation  of Recognised 
Organisations acting on behalf of the Administration.  

(11)  The Marine Environment Protection Committee, during its 75th session from 16 – 20 
November 2020 (‘MEPC 75’) is to approve jointly with MSC 102 an MSC-MEPC.5 
Circular  on  Model  Agreement  for  the  authorisation  of  Recognised  Organisations 
acting on behalf of the Administration.  

(12) 

(13) 

It  is  appropriate  to  establish  the  position  to  be  taken  on  the  Union’s  behalf  during 
MSC  102,  as  the  approval  of  MSC-MEPC.5  Circular  will  be  capable  of  decisively 
influencing the content of Union law, namely  Directive 2009/15/EC of the European 
Parliament and of the Council1.  

It  is  appropriate  to  establish  the  position  to  be  taken  on  the  Union’s  behalf  during 
MEPC  75,  as  the  approval  of  MSC-MEPC.5  Circular  will  be  capable  of  decisively 
influencing the content of Union law, namely Directive 2009/15/EC of the European 
Parliament and of the Council. 

(14)  The approval of the MSC-MEPC.5 circular, which supersedes circulars MSC/Circ.710 
and MEPC/Circ.307, will update the model agreement and bring it into line with the 
Code  for  Recognized  Organizations  (RO  Code)  (resolutions  MSC.349(92)  and 
MEPC.237(65)).  It  will  contribute 
transparency  and 
accountability of both the flag administration and ROs at global level. 

increasing  accuracy, 

to 

(15)  Council  Decision  (EU)  2020/721  of  19  May  20202  should  be  amended  to  include 

reference to the approval of the MSC-MEPC.5 Circular.  

(16)  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  and  Marine  Environment 
Protection Committee, acting jointly,  

HAS ADOPTED THIS DECISION: 

Council Decision (EU) 2020/721 is hereby amended as follows:  

“Article 1 

Article 1 

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2 

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, 28.5.2009, p. 47). 
Council Decision (EU) 2020/721 of 19 May 2020 on the position to be taken on behalf of the European 
Union  within  the  International  Maritime  Organization’s  Marine  Environment  Protection  Committee 
during  its  75th  session  and  within  the  International  Maritime  Organization’s  Maritime  Safety 
Committee during its 102nd session as regards the adoption of amendments to regulations 2, 14 and 18 
and appendices I and VI of Annex VI to the International Convention for the Prevention of Pollution 
from Ships, Parts A-1, B, B-1, B-2 to B-4 of Chapter II-1 of the International Convention for the Safety 
of Life at Sea, Parts A-1 and B-1 of the International Code of Safety for Ships Using Gases or Other 
Low-flashpoint  Fuels  and  resolution  A.658(16)  on  the  use  and  fitting  of  retro-reflective  materials  on 
life-saving appliances (OJ L 171, 2.6.2020, p. 1–3) 

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The  position  to  be  taken  on  behalf  of  the  Union  within  the  International  Maritime 
Organization’s Marine Environment Protection Committee during its 75th session shall be to 
support the adoption of the amendments to regulations 2, 14 and 18 and appendices I and VI 
of  Annex  VI  to  the  International  Convention  for  the  Prevention  of  Pollution  from  Ships,  as 
laid  down  in  the  Annex  to  IMO  document  MEPC  75/3  and  the  approval  of  MSC-MEPC.5 
Circular as laid down in Annex 8 to IMO Document III 6/15.  

Article 2 

1.  The  position  to  be  taken  on  behalf  of  the  Union  within  the  International  Maritime 
Organization’s  Maritime  Safety  Committee  during  its  102nd  session  shall  be  to  support  the 
adoption of the amendments to: 

(a)  Parts  A-1,  B,  B-1,  B-2  to  B-4  of  Chapter  II-1  of  the  International  Convention  for  the 
Safety of Life at Sea, as laid down in Annex 1 to IMO document MSC 102/3; 

(b)  Parts  A-1  and  B-1  of  the  International  Code  of  Safety  for  Ships  Using  Gases  or  Other 
Low-flashpoint Fuels, as laid down in Annex 2 to IMO document MSC 102/3; 

(c)  resolution  A.658(16)  on  the  use  and  fitting  of  retro-reflective  materials  on  life-saving 
appliances;  

And the approval of the MSC-MEPC.5 Circular on Model Agreement for the authorisation of 
Recognised Organisations acting on behalf of the Administration.“ 

This Decision is addressed to the Member States.  

Done at Brussels, 

Article 2  

For the Council 
The President 

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