Proposal for a COUNCIL DECISION on the position to be taken on behalf of the European Union in the International Maritime Organization's 32nd Assembly on the adoption of amendments to the Guidelines under the Harmonized System of Survey and Certification
Date: 2021-11-03
Institutions: Directorate-General for Mobility and Transport, European Commission
Subjects: International Maritime Organisation, maritime safety, safety standard, technical specification, technical standard, vehicle documents, vessel

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   EUROPEAN COMMISSION  Brussels, 3.11.2021  COM(2021) 671 final 2021/0352 (NLE)  Proposal for a COUNCIL DECISION on the position to be taken on behalf of the European Union in the International Maritime Organization's 32nd Assembly on the adoption of amendments to the Guidelines under the Harmonized System of Survey and Certification  
 
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 32nd Assembly of the International Maritime Organization (IMO), taking place virtually 
from 6 to 15 December 2021.  
During the 32nd Assembly (A 32), it is envisaged to adopt draft Survey Guidelines under the 
Harmonized  System  of  Survey  and  Certification  (HSSC),  2021  and  revoke  Assembly 
resolution  A.1140(31), by  which the  IMO Assembly, in  its 31st  session, adopted the Survey 
Guidelines under the Harmonized System of Survey and Certification (HSSC), 2019. 

2. 

CONTEXT OF THE PROPOSAL 

2.1. 

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.  

2.2. 

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.  

Membership in the IMO is open to all States and all EU Member States are IMO members. 
The  EU’s  relations  with  IMO  are  notably  based  on  the  Arrangement  for  Co-operation  and 
Collaboration concluded between the Inter-Governmental Maritime Consultative Organisation 
(IMCO) and the Commission of the European Communities in 1974. 

The  IMO’s  Assembly  is  the  governing  body  of  the  organisation.  It  consists  of  all  IMO 
Member States, meeting every second year and can adopt measures agreed in all of the IMO’s 
five  main  Committees.  Among  these  five  committees  are  the  Maritime  Safety  Committee 
(MSC) and Marine Environment Protection Committee (MEPC). 

The envisaged act of the IMO’s Assembly  

2.3. 
On 6 to 15 December 2021, during its 32nd session, the Assembly is to adopt amendments to 
the Guidelines under the harmonized system of survey and certification. 

The purpose of the envisaged amendments is to update the Guidelines to reflect requirements 
deriving  from  amendments  to  the  relevant  mandatory  instruments  entering  into  force  up  to 
and including 31 December 2021.  

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3. 

3.1. 

POSITION TO BE TAKEN ON THE UNION'S BEHALF 

Adoption of the Survey Guidelines under the Harmonized System of Survey and 
Certification, 2021, and revocation of A.1140(31) 

The Sub-Committee on Flag State Implementation, the predecessor of the Sub-Committee on 
Implementation of IMO Instruments (III), agreed to revise the HSSC Survey Guidelines on a 
continuous  basis.  The  Survey  Guidelines  are  therefore  updated  at  every  session  of  the  IMO 
Assembly. The latest  version of the Survey Guidelines is  included in  resolution  A.1140(31) 
and was adopted at the 31st session of the Assembly in 2019.  
In  its  6th  session,  III  established  the  Correspondence  Group  on  the  Review  of  the  Survey 
Guidelines  under  the  HSSC  and  the  Non-exhaustive  list  of  obligations  under  instruments 
relevant to the IMO Instruments  Implementation Code (III Code), under the coordination of 
China. This had been done the same way at previous sessions of III.  

The Correspondence Group was asked to continue to develop draft amendments to the Survey 
Guidelines. These derive from the amendments to the relevant mandatory instruments due to 
enter into force up to  and including 31 December 2021, taking into account  the outcome of 
MEPC  and  MSC  sessions.  The  adoption  of  the  updated  HSSC  Survey  Guidelines  and 
revocation of resolution A.1140(31), which contains the current Guidelines, will be approved 
at the 104th session of MSC and 77th session of MEPC. After approval  at both Committees, 
the draft Resolution will be referred to A 32 for adoption.  

The regular review ensures that the HSSC Survey Guidelines remain up to date. The update to 
be adopted clarifies i.a. that expired primary batteries, which complied with the requirements 
of paragraph 12.6 of the annex to resolution MSC.149(77), could be used for no other purpose 
than  to  examine  and  check  the  operation  of  two-way  VHF  radiotelephone  apparatus.  The 
Union  should  therefore  support  these  amendments,  as  they  will  ensure  that  the  Survey 
Guidelines take into account new developments. 

Relevant EU legislation and EU competence 

3.2. 
Regulation (EC) No 391/20091 lays down common rules and standards for ship inspection and 
survey organisations. The criterion contained in Annex I, part B, point 7(k) of the Regulation 
requires  a  recognised  organisation  to  ensure  that  the  statutory  surveys  and  inspections  are 
carried out in accordance with the survey guidelines under the harmonised system of survey 
and certification adopted by the IMO. 

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 agreement2. 

1 Regulation  (EC)  No  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. 11–23. 

2  Judgment of the Court of Justice of 7 October 2014, Germany v Council, C-399/12, ECLI:EU:C:2014:2258, 

paragraph 64.  

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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. 

4.1.2.  Application to the present case 

The IMO’s Assembly is a body set up by an agreement, the Convention on the International 
Maritime Organization. 

The  act  which  the  Assembly  is  called  upon  to  adopt  constitutes  an  act  having  legal  effects. 
The  envisaged  act  is  capable  of  decisively  influencing  the  content  of  Regulation  (EC)  No 
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.  This  is  because  it  requires  a 
recognised organisation to ensure that the statutory surveys and inspections are carried out in 
accordance  with  the  survey  guidelines  under  the  harmonised  system  of  survey  and 
certification adopted by the IMO. 

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. 

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 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. 

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) TFEU, in conjunction with 
Article 218(9) TFEU. 

3  Judgment of the Court of Justice of 7 October 2014, Germany v Council, C-399/12, ECLI:EU:C:2014:2258, 

paragraphs 61 to 64.  

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2021/0352 (NLE) 

Proposal for a 

COUNCIL DECISION 

on the position to be taken on behalf of the European Union in the International 
Maritime Organization's 32nd Assembly on the adoption of amendments to the 
Guidelines under the Harmonized System of Survey and Certification 

THE COUNCIL OF THE EUROPEAN UNION, 

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

Having regard to the proposal from the European Commission, 

Whereas: 

(1) 

(2) 

(3) 

(4) 

(5) 

(6) 

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.  The  Union  is  not  a 
member of the IMO. 

Pursuant to Article 15(j) of the Agreement, the Assembly  may adopt regulations and 
guidelines  to  Members  concerning  maritime  safety,  the  prevention  and  control  of 
marine pollution from ships and other matters concerning the effect of shipping on the 
marine  environment  assigned  to  the  Organization  by  or  under  international 
instruments,  or  amendments  to  such  regulations  and  guidelines  which  have  been 
referred to it.  
The IMO’s Assembly, in its 32nd session from 6 to 15 December 2021, is to adopt the 
Survey Guidelines under the Harmonized System of Survey and Certification (HSSC), 
2021,  and  revoke  IMO  Assembly  resolution  A.1140(31),  which  contains  the  HSSC 
Survey Guidelines, 2019. 

It is appropriate to establish the position to be taken on the Union’s behalf during the 
32nd  session  of  the  IMO’s  Assembly,  as  the  amendments  to  the  HSSC  Survey 
Guidelines  will  be  capable  of  decisively  influencing  the  contents  of  Union  law, 
namely Regulation (EC) No 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.  

The  adoption  of  the  HSSC  Survey  Guidelines,  2021  and  revocation  of  the  HSSC 
Survey  Guidelines  2019  are  part  of  a  regular  review.  The  Union  should  therefore 
support those amendments because they will ensure that the HSSC Survey Guidelines 
remain up to date. 

(7) 

The Union’s  position is  to  be expressed by the  Member States of the Union  that are 
members of the IMO’s Assembly, acting jointly, 

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HAS ADOPTED THIS DECISION: 

Article 1 
The  position  to  be  taken  on  the  Union's  behalf  in  the  32nd  session  of  the  International 
Maritime  Organization’s  (‘IMO’)  Assembly  shall  be  to  agree  to  the  adoption  of  the  Survey 
Guidelines under the Harmonized System of Survey and Certification, 2021 as laid down in 
document  III  7/17/Add.1,  section  8  and  annex  6  and  the  consequent  revocation  of  IMO 
Assembly resolution A.1140(31). 

The  position  referred  to  in  Article  1  shall  be  expressed  by  the  Member  States  of  the  Union 
that are members of the IMO’s Assembly, acting jointly. 

Article 2 

This Decision is addressed to the Member States. 

Done at Brussels, 

Article 3 

For the Council 
The President 

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