Proposal for a COUNCIL DECISION on the position to be taken on behalf of the European Union in the International Maritime Organization during the 33rd session of the Assembly on the adoption of amendments to the Guidelines under the Harmonized System of Survey and Certification, the Guidelines on the implementation of the International Safety Management Code by Administrations, the Non-exhaustive list of obligations under instruments relevant to the IMO Instruments Implementation Code and the Guidelines on places of refuge for ships in need of assistance, and the adoption of the draft Assembly Resolution to promote actions to prevent illicit operations of “dark shipping” in the maritime sector
Date: 2023-10-27
Institutions: Directorate-General for Mobility and Transport, European Commission
Subjects: International Maritime Organisation, economic sanctions, illicit trade, international sanctions, maritime safety, trade restriction, vehicle documents, vessel

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   EUROPEAN COMMISSION  Brussels, 27.10.2023  COM(2023) 663 final 2023/0380 (NLE)  Proposal for a COUNCIL DECISION on the position to be taken on behalf of the European Union in the International Maritime Organization during the 33rd session of the Assembly on the adoption of amendments to the Guidelines under the Harmonized System of Survey and Certification, the Guidelines on the implementation of the International Safety Management Code by Administrations, the Non-exhaustive list of obligations under instruments relevant to the IMO Instruments Implementation Code and the Guidelines on places of refuge for ships in need of assistance, and the adoption of the draft Assembly Resolution to promote actions to prevent illicit operations of “dark shipping” in the maritime sector  
 
EXPLANATORY MEMORANDUM 

1. 

SUBJECT MATTER OF THE PROPOSAL 

This proposal concerns a decision establishing the position to be taken on the Union's behalf 
at the 33rd session of the International Maritime Organization’s Assembly (A 33), taking place 
from 27 November to 6 December 2023.  
During the 33rd Assembly, it is envisaged to adopt: 

(1) 

(2) 

(3) 

(4) 

(5) 

Amendments to the Survey Guidelines under the Harmonized System of Survey and 
Certification (HSSC), 2021 and revoke Assembly resolution A.1156(32); 

Amendments  to  the  Guidelines  on  the  implementation  of  the  International  Safety 
Management (ISM) Code by Administrations; 

Amendments to the non-exhaustive list of obligations under instruments relevant to 
the IMO Instruments Implementation Code (III Code);   

Amendments  to  the  Guidelines  on  places  of  refuge  for  ships  in  need  of  assistance 
(resolution A.949(23)); and,  

a draft Assembly Resolution to promote actions to prevent illicit operations of “dark 
shipping” in the maritime sector. 

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. The Union is not a party 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  based  notably  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  recommend  to  Members  for  adoption 
regulations and guidelines or amendments to such regulations and guidelines agreed in all of 

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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  27  November  to  6  December  2023,  during  its  33rd  session,  the  Assembly  is  to  adopt 
amendments  to:  the  Guidelines  under  the  Harmonized  System  of  Survey  and  Certification 
(HSSC),  the  Guidelines  on  the  implementation  of  the  ISM  Code  by  Administrations,  to  the 
Non-exhaustive  list  of  obligations  under  instruments  relevant  to  the  III  Code,  to  the 
Guidelines on places of refuge for ships in need of assistance and to adopt a draft Assembly 
Resolution to promote actions to prevent illicit operations of “dark shipping” in the maritime 
sector. 

The purpose of the envisaged amendments to the Guidelines under the harmonized system of 
survey and certification is to update them to reflect requirements deriving from amendments 
to  the  relevant  mandatory  instruments  entering  into  force  up  to  and  including  31  December 
2023,  including  amendments  to  develop  the  guidance  on  assessments  and  applications  of 
remote surveys.  

The purpose of the  envisaged amendments  to  Guidelines on the implementation  of the  ISM 
Code by Administrations is to provide guidance on remote surveys and remote audits.   

The  purpose  of  the  envisaged  amendments  to  the  Non-exhaustive  list  of  obligations  under 
instruments relevant to the III Code is to update the 2021 list following additional legislative 
provisions that have been adopted by both MSC and MEPC. 

The purpose of the envisaged amendments to the Guidelines on places of refuge for ships in 
need  of  assistance  is  to  ensure  that  the  IMO  resolution  remains  up  to  date  and  continues  to 
serve  as  an  effective  instrument  providing  a  clear  framework,  to  deal  with  a  ship  seeking  a 
place of refuge, in a consistent and harmonized manner globally.  

The  purpose  of  the  envisaged  Assembly  Resolution  to  promote  actions  to  prevent  illicit 
operations of “dark shipping” in the maritime sector is to encourage and urge flag States, port 
States and coastal States to take measures to prevent actions such as ship-to-ship transfers at 
sea.  

3. 

3.1. 

POSITION TO BE TAKEN ON THE UNION'S BEHALF 

Amendments  to  the  Guidelines  under  the  Harmonized  System  of  Survey  and 
Certification, 2021, and revocation of A.1156(32) 

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.1156(32) 
and was adopted at the 32nd session of the Assembly in 2021.  

In its 7th session, III re-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,  among  others,  to  continue  to  develop  draft 
amendments  to  the  Survey  Guidelines,  deriving  from  the  amendments  to  the  relevant 
mandatory instruments due to enter into force up to and including 31 December 2023, taking 
into account the outcome of MSC 103, MEPC 76 and future sessions of MSC and MEPC, as 

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appropriate,  with  a  view  to  submission  of  draft  amendments,  as  finalized  in  a  consolidated 
form, for adoption at A 33. 
In  the  8th  session  of  the  III,  the  Sub-Committee  noted  that,  due  to  time  constraints,  the 
Working Group was unable to review the draft amendments to the Survey Guidelines under 
the  Harmonized  System  of  Survey  and  Certification  (HSSC),  2021  (resolution  A.1156(32)), 
and deferred the matter to III 9. 

The Sub-Committee agreed that the draft amendments to the Survey Guidelines needed to be 
further  developed  to  include  the  requirements  deriving  from  amendments  to  relevant  IMO 
instruments  entering  into  force  up  to  and  including  31  December  2023,  with  a  view  to 
submission of draft amendments to III 9 for finalization prior to potential direct submission in 
the consolidated form to A 33 for adoption, subject to approval by the Committees.  

The  Sub-Committee  also  agreed  to  re-establish  the  Correspondence  Group  on  the  Survey 
Guidelines  under  the  HSSC,  the  Non-exhaustive  List  of  Obligations,  and  the  Guidance  on 
Remote Surveys, Audits and Verifications. 

In III 9, the Sub-Committee agreed to the draft amendments to the Survey Guidelines under 
the HSSC (resolution A.1156 (32)), to be adopted during the 33rd session of the Assembly. 

The  Union’s  position  was  to  support  the  proposed  amendments  but  to  be  referred  to  the 
working group for review and finalisation during the session. 

The  proposed  amendments  derive  from  the  amendments  to  the  relevant  mandatory 
instruments  due  to  enter  into  force  up  to  and  including  31  December  2023,  including 
provisions for remote survey. The update to  be adopted refers to  remote  surveys and audits 
and  keeps  their  scope  limited  only  to  extraordinary  circumstances,  until  IMO  develops 
detailed Guidelines. 

The  Union  should  therefore  support  these  amendments,  as  they  will  ensure  that  the  HSSC  
Guidelines take into account the new developments and remain up to date. 

3.2. 

Amendments  to  Guidelines  on  the  implementation  of  the  ISM  Code  by 
Administrations 

During MSC 104, new outputs were established on regulating remote survey and audit; and 
on  developing  guidelines  for  remote  inspections  and  verifications  in  the  field  of  maritime 
security.  The  Committee  agreed  to  include  a  new  output  on  "Development  of  guidance  on 
assessments and applications of remote surveys, ISM Code audits and  International Ship and 
Port Facility Security Code (ISPS Code) verifications", in the biennial agenda of the III Sub-
Committee for 2022-2023 and the provisional agenda for III 8, with a target completion year 
of 2024. The same was agreed by MEPC 77. 

During III 8, the Sub-Committee agreed that the framework for the output should consist of 
the following three parts or sub-outputs: 

1.  amendments to the Survey Guidelines under the HSSC (part 1); 

2.  amendments  to  the  Revised  Guidelines  on  the  implementation  of  the  International 

Safety Management (ISM) Code (part 2); and 

3.  development  of  guidance  on  assessments  and  applications  of  remote  surveys,  ISM 

Code audits and ISPS Code verifications (part 3). 

The Sub-Committee also agreed that amendments to the Survey Guidelines under the HSSC 
(part 1) and amendments to the Revised Guidelines on the implementation of the International 
Safety Management (ISM) Code (part 2) will be adopted by A 33 in 2023.  

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The Sub-Committee instructed the Correspondence Group on the Survey Guidelines under the 
HSSC, the Non-exhaustive List of Obligations, and the Guidance on Remote Surveys, Audits 
and Verifications, among others, to further develop and finalize amendments to the Revised 
Guidelines  on  the  implementation  of  the  ISM  Code  by  Administrations  (resolution 
A.1118(30)). 

MSC 106 and MEPC 79 had authorized III 9 to report the outcome of its work related to the 
draft Survey Guidelines under the HSSC, 2023, including provisions for remote surveys and 
the revised Guidelines on the implementation of the ISM Code by Administrations, including 
provisions  for  remote  ISM  Code  audits,  which  are  expected  to  be  adopted  as  Assembly 
resolutions at A 33. 

During the III 9, the Sub-Committee agreed to the amendments to the Revised Guidelines on 
the implementation of the ISM Code by Administrations (resolution A.1118(30)) with a view 
to submission to A 33 for adoption. 

The Union’s position was to support the revised Guidelines on the implementation of the ISM 
Code  by  administrations,  and  recommended  that  they  are  reviewed  in  a  working  group  for 
finalisation, taking also into consideration additional proposing amendments.  

The Union position should be to support these amendments, as they serve as a starting point 
for  the  framework  for  developing  guidance  on  remote  surveys,  ISM  Code  audits  and  ISPS 
Code verifications, and its further development and finalization at the next stage.  

3.3. 

Amendments  to  the  non-exhaustive  list  of  obligations  under  instruments 
relevant to the III Code 

As  guidance  on  the  implementation  and  enforcement  of  IMO  instruments,  in  particular 
concerning  the  identification  of  auditable  areas  relevant  to  the  IMO  Member  State  Audit 
Scheme, the IMO has been developing a non-exhaustive list of obligations under instruments 
relevant to the IMO Instruments Implementation Code (III Code). The latest revision of this 
list was in 2021 as annex to Resolution A.1157(32) adopted by A 32. Since then, both MSC 
and MEPC adopted additional legislative provisions. 

The  III  8  had  agreed  that  the  annexes  to  the  2021  Non-exhaustive  list  of  obligations  under 
instruments  relevant  to  the  IMO  instruments  Implementation  Code  needed  to  be  further 
developed in order to keep the list updated with amendments to the relevant mandatory IMO 
instruments entering into force up to and including 1 July 2024.  

The Sub-Committee also had established the Correspondence Group on the Survey Guidelines 
under  the  HSSC,  the  Non-exhaustive  List  of  Obligations,  and  the  Guidance  on  Remote 
Surveys, Audits and Verifications, under the coordination of China, to, inter alia, continue to 
develop  the  draft  amendments  to  the  Non-exhaustive  list  of  obligations,  with  a  view  to 
submission  of  draft  amendments  to  the  Non-exhaustive  list,  as  finalized  in  a  consolidated 
form, for adoption at A 33. 

Due  to  time  constraints,  III  8  was  unable  to  finalise  the  review  of  the  proposed  draft 
amendments to the 2021 Non-exhaustive list of obligations under instruments relevant to the 
III Code. Therefore, the Sub-Committee agreed to continue the review in the Correspondence 
Group with a view to finalisation at III 9. 

The Union’s position at III 9 was to support the relevant submissions that are used as a basis 
to  update  the  2021  Non-exhaustive  list  of  obligations  under  instruments  relevant  to  the  III 
Code. 

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The Union’s position should be to support these amendments as to keep the list updated with 
the  amendments  to  the  relevant  mandatory  IMO  instruments  entering  into  force  up  to  and 
including 1 July 2024. 

3.4. 

Amendments to the Guidelines on places of refuge for ships in need of assistance 
(resolution A.949(23)) 

MSC  100  approved  the  request  for  a  new  output  to  update  the  current  IMO  resolution 
A.949(23) on Guidelines on places of refuge for ships in need of assistance.  
The  7th  session  of  the  Sub-Committee  on  Navigation,  Communications  and  Search  and 
Rescue  (NCSR  7),  which  was  entrusted  to  work  on  this  issue,  agreed  to  establish  a 
Correspondence Group, under the coordination of the United Kingdom, to continue the work. 
It also developed a work plan with a view to finalise the Guidelines at NCSR 8, for approval 
by MSC, MEPC and the Legal Committee (LEG), in time for adoption at Assembly 32. This 
fast track work plan was approved by MSC 102. 

Unfortunately, NCSR 8 was unable to complete the draft Guidelines.  In view of the lack of 
progress  in  finalising  the  guidelines  the  Sub-Committee  agreed  to  re-establish  the 
Correspondence  Group,  under  the  coordination  of  the  United  Kingdom,  with  a  view  to 
finalisation at NCSR 9. 

NCSR 9 took into account decisions, comments and proposals made in plenary, to review and 
finalize the draft revision of resolution A.949(23) on Guidelines on places of refuge for ships 
in  need  of  assistance.  The  Sub-Committee  agreed  to  the  draft  Assembly  resolution  on 
Guidelines on places of refuge for ships in need of assistance, and invited the Committee to 
approve  it,  with  a  view  to  subsequent  approval  by  MEPC  and  the  LEG  Committee,  and 
adoption by A 33. 

The Union’s position was to actively support the finalisation of the revision of the Guidelines 
on places of refuge for ships in need of assistance. 

MSC 106 approved the draft Assembly resolution on the revision of the Guidelines on places 
of  refuge  for  ships  in  need  of  assistance  (resolution  A.949  (23)),  following  the  finalization 
thereof by NCSR 9, and invited MEPC and the Legal Committee to approve the same, with a 
view to adoption by the Assembly at its thirty-third session. 

LEG 110 approved the same draft Assembly resolution with some minor amendments which 
do not affect the operational content of the guidelines. 

Lastly, MEPC 80 approved the draft Assembly resolution on Guidelines on places of refuge 
for  ships  in  need  of  assistance,  as  amended  by  LEG  110,  for  consideration,  with  a  view  to 
adoption, by A 33. 

The  Union’s  position  should  be  to  support  these  amendments  to  ensure  that  the  IMO 
resolution  remains  up  to  date  and  continues  to  serve  as  an  effective  instrument  providing  a 
clear framework, to deal with a ship seeking a place of refuge, in a consistent and harmonized 
manner globally. 

3.5. 

Adoption  of  a  draft  Assembly  Resolution  to  promote  actions  to  prevent  illicit 
operations of “dark shipping” in the maritime sector 

During MEPC 80, the Committee considered a submission to raise awareness of the potential 
environmental  risks,  the  consequences  and  concerns  for  global  pollution  prevention  and 
liability  and  compensation  regimes  that  exist  because  of  the  increase  in  ship-to-ship  (STS) 
transfers  at  sea,  including  by  ships  using  "dark  operations"  (i.e.  turning  off  satellite 
transponders  and  using  other  methods  of  obfuscation  such  as  location  tampering,  course 

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deviations)  to  circumvent  restrictions  set  out  in  sanctions  regimes  and  high  insurance  costs. 
Accordingly,  the  Committee  considered  setting  out  in  the  annex  to  the  document  a  draft 
Assembly resolution urging Member States and all relevant stakeholders to promote actions to 
prevent illicit operations of "dark shipping" in the maritime sector. 

Following  the  discussion,  the  Committee  agreed  that  there  was  general  support  for  a  draft 
Assembly resolution to urge Member States and all relevant stakeholders to promote actions 
to prevent illicit operations of dark shipping in the maritime sector. The Committee agreed to 
forward  the  draft  Assembly  resolution  to  the  thirty-third  session  of  the  Assembly,  together 
with the comments and views expressed at this session, for further consideration with a view 
to finalization and adoption by A 33. 

As part of the global multilateral system, the EU adheres to the United Nations (UN) Security 
Council Resolutions imposing sanctions against third countries, which it transposes into EU 
legislation. It also imposes sanctions on its own (EU autonomous measures) or adds its own 
restrictions on top of those mandated by the UN (mixed sanctions regimes).  

The adoption of the draft Resolution is expected to benefit the implementation of Articles 3eb 
and 3ec of Council Regulation 833/2014.  

Therefore, the Union’s position should be to support the adoption of this Resolution to ensure 
that any measures introduced at IMO level to address “dark operations” the object or effect of 
which  could  violate  or  circumvent  sanctions  is    consistent  with  the  measures  applicable  at 
Union level. 

3.6. 

Relevant EU legislation and EU competence 

3.6.1.  Amendments  to  the  Guidelines  under  the  Harmonized  System  of  Survey  and 

Certification, 2021 

Regulation (EC) No 391/2009 on common rules and standards for ship inspection and survey 
organisations1. It creates a system of licensing (recognition), which is subject to a number of 
criteria and obligations to ensure that a recognised organisation applies the same standards to 
all ships in its register, irrespective of the flag the ships fly. 

Annex I, criterion B7(k) of that Regulation states:  

"7. The recognised organisation must ensure that:  

(k)  the  statutory  surveys  and  inspections  required  by  the  harmonised  system  of  survey  and 
certification for which the recognised organisation is authorised are carried out in accordance 
with  the  provision  set  out  in  the  Annex  and  Appendix  to  IMO  Resolution  A.948(23)  on 
survey guidelines under the harmonised system of survey and certification." (This should be 
taken to refer to the up-to-date version of the Survey Guidelines under the HSSC.) 

Therefore,  the  revision  of  Survey  Guidelines  under  the  Harmonized  System  of  Survey  and 
Certification,  2021  is  capable  of  decisively  influencing  the  requirements  applicable  under 
Regulation (EC) No 391/2009. 

3.6.2.  Amendments 

to  Guidelines  on 

the 

implementation  of 

the  ISM  Code  by 

Administrations 

Regulation (EC) No 391/2009, as amended, lays down common rules and standards for ship 
inspection and survey organisations. Point A.3 of Annex I to the Regulation requires that the 
Recognised Organisations have the necessary technical and human resources to deliver their 

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OJ L 131, 28.5.2009, p. 11 

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work while point B.1 requires that they maintain a worldwide network of exclusive surveyors. 
In addition, point B.10  of Annex I to the Regulation requires the Recognised Organisations to 
have  the  necessary  means  of  assessing,  through  the  use  of  qualified  professional  staff  and 
pursuant to the provisions set out in the Annex to IMO Resolution A.913(22) on guidelines on 
implementation of the International Safety Management (ISM) Code by administrations, the 
application and maintenance of the safety management system, both shore-based and on board 
ships, intended to be covered in the certification.  
Furthermore,  Regulation  (EC)  No  336/20062 
Management Code (ISM Code) in the Union legislation. 

the  International  Safety 

incorporates 

Therefore,  the  amendments  to  the  Guidelines  on  the  implementation  of  the  ISM  Code  by 
Administrations  are  capable  of  decisively  influencing  the  requirements  applicable  under 
Regulation (EC) No 391/2009 and Regulation (EC) No 336/2006.  

3.6.3.  Amendments  to the non-exhaustive list  of  obligations under instruments  relevant  to 

the III Code 

Directive  2009/21/EC  on  compliance  with  flag  State  requirements3  aims  to  ensure  that  EU 
Member States respect their obligations as flag States and meet the requirements incumbent 
on a flag State under IMO International Conventions. Pursuant to Article 7 of that Directive, 
an audit procedure led by the IMO and for which the III Code constitute the relevant standard, 
has been established, which aims to supervise the flag State performance. In addition, the III 
Code is also taken into account by Regulation (EC) No 391/2009, as amended. 

Therefore,  the  amendments  to  the  non-exhaustive  list  of  obligations  under  instruments 
relevant  to  the  III  Code  are  capable  of  decisively  influencing  the  requirements  applicable 
under Directive 2009/21/EC  and Regulation (EC) No 391/2009.  

3.6.4.  Amendments  to  the  Guidelines  on  places  of  refuge  for  ships  in  need  of  assistance 

(resolution A.949(23)) 

Regulation 2002/59/EC4, as amended, establishes a Community vessel traffic monitoring and 
information system. 

Article  20a,  paragraph  (2),  directly  addresses  the  plans  for  the  accommodation  of  ships  in 
need  of  assistance  by  requiring  that  such  plans  shall  be  prepared  on  the  basis  of  IMO 
Resolutions A.949(23) on Guidelines on places of refuge for ships in need of assistance and 
A.950(23) on maritime assistance services (MAS).  

Therefore,  the  amendments  to  the  Guidelines  on  places  of  refuge  for  ships  in  need  of 
assistance are capable of decisively influencing the requirements applicable under Regulation 
2002/59/EC.   

3.6.5.  Adoption  of  a  draft  Assembly  Resolution  to  promote  actions  to  prevent  illicit 

operations of “dark shipping” in the maritime sector 

Council Decision 2014/512/CFSP5 and Council Regulation (EU) No 833/20146, as amended, 
concern restrictive measures in view of Russia's actions destabilising the situation in Ukraine. 

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OJ L 64, 4.3.2006, p. 1 
OJ L 131, 28.5.2009, p. 132 
OJ L 208, 5.8.2002, p. 10 
OJ L 229, 31.7.2014, p. 13 
OJ L 229, 31.7.2014, p. 1 

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Article  3eb,  paragraph  1,  of  Council  Regulation  (EU)  No  833/2014  prohibits,  as  of  24  July 
2023, access to EU ports for vessels that engage in ship-to-ship transfers suspected to be in 
breach of: the prohibition, laid down in Article 3m paragraphs 1 and 2 of that Regulation, to 
“purchase, import or transfer, directly or indirectly, crude oil or petroleum products, as listed 
in  Annex  XXV,  if  they  originate  in  Russia  or  are  exported  from  Russia”  and  to  “provide, 
directly  or  indirectly,  technical  assistance,  brokering  services,  financing  or  financial 
assistance or any other services related to the  [the latter] prohibition”; the prohibition, laid 
down in Article 3n paragraphs 1 and 4 of that Regulation, “to provide, directly or indirectly, 
technical  assistance,  brokering  services  or  financing  or  financial  assistance,  related  to  the 
trading, brokering or transport, including through ship-to-ship transfers, to third countries of 
crude oil or petroleum products as listed in Annex XXV which originate in Russia or which 
have  been  exported  from  Russia”  and  to  “to  trade,  broker  or  transport,  including  through 
ship-to-ship  transfers, to third  countries, crude oil falling under CN code 2709 00 , as of  5 
December 2022, or petroleum products falling under CN code 2710 , as of 5 February 2023, 
as listed in Annex XXV, which originate in Russia or which have been exported from Russia”. 

Likewise, Article 3eb paragraph 2 of Council Regulation (EU) No 833/2014 prohibits access 
to vessels which does not notify the competent authority at least 48 hours in advance about a 
ship-to-ship  transfer  occurring  within  the  Exclusive  Economic  Zone  of  a  Member  State  or 
within 12 nautical miles from the baseline of that Member State’s coast. 

Article 3ec of Council Regulation (EU) No 833/2014 prohibits, as of 24 July 2023, access to 
EU  ports  for  vessels  suspected  of  illegally  interfering  with,  switching  off  or  otherwise 
disabling their shipborne automatic identification system (AIS) at any point of the voyage to a 
Member  State’s  ports  or  locks,  in  breach  of  SOLAS  Regulation V/19,  point  2.4,  when 
transporting  Russian  crude  oil  or  petroleum  products  subject  to  the  above-mentioned 
prohibitions set out in Article 3m(1) and (2) and Article 3n(1) and (4). 

The proposed Resolution provides for a definition of the “dark fleet” or “shadow fleet” which 
would  comprise  also  “ships  that  are  engaged  in  illegal  operations  for  the  purposes  of 
circumventing  sanctions”  through  conducts  covered  by  Articles  3eb  and  3ec  of  Council 
Regulation  833/2014,  and  calls  on  IMO  Member  States  (including  EU  Member  States)  to 
promote actions to prevent such illegal operations. 

Therefore, the  adoption  of a draft Assembly Resolution to  promote actions to  prevent  illicit 
operations of “dark shipping” in the maritime sector is capable of decisively influencing the 
application of Council Decision 2014/512/CFSP and Council Regulation (EU) No 833/2014.    

3.6.6.  EU competence 

The subject matter of the envisaged acts concerns an area for which the Union has exclusive 
external competence by virtue of the last limb of Article 3(2) TFEU, as the envisaged acts are 
liable to ‘affect common rules or alter their scope’), 

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.’ 

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Article 218(9) TFEU applies regardless of whether the Union is a member of the body or a 
party to the agreement.7 

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’.8 

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 acts which the Assembly is called upon to adopt constitute acts having legal effects. The 
envisaged  acts  are  capable  of  decisively  influencing  the  content  of  the  following  EU 
legislation and notably: 

– 

– 

– 

– 

– 

7 
8 

Regulation  (EC)  No  391/2009  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. . 
Additionally, the Regulation obliges recognised organisations to have the necessary 
means  of  assessing  the  application  and  maintenance  of  the  safety  management 
system,  both  shore-based  and  on  board  ships,  intended  to  be  covered  in  the 
certification,  through  the  use  of  qualified  staff  and  pursuant  to  the  guidelines  on 
implementation  of 
(ISM)  Code  by 
administrations.    The  III  Code  is  also  taken  into  account  in  accordance  with  the 
definition  of  ‘international  conventions’  in  Regulation  (EC)  No  391/2009,  as 
amended.   

International  Safety  Management 

the 

the  International  Safety 
Regulation  (EC)  No  336/2006  which 
Management Code (ISM Code) in the Union legislation, and which will need to take 
into  consideration  the  amendments  adopted  in  relation  to  IMO  Resolution 
A.1118(30) on guidelines on implementation of the International Safety Management 
(ISM) Code by administrations.  

incorporates 

Directive  2009/21/EC  on  compliance  with  flag  State  requirements.  This  is  because 
the  non-exhaustive  list  is  a  supporting  tool  for  the  implementation  of  the  IMO 
Member State Audit  Scheme (IMSAS), which is  mentioned in  the abovementioned 
Directive. 

Regulation  2002/59/EC  establishing  a  Community  vessel  traffic  and  monitoring 
system. This is because Article 20a on the plans for the accommodation of ships in 
need  of  assistance  directly  refers  to  the  IMO  resolution  A.949(23)  which  will  be 
revised. 

Council  Decision  2014/512/CFSP  and  Council  Regulation  (EU)  No  833/2014 
concerning restrictive measures in view of Russia's actions destabilising the situation 
in  Ukraine.  This  is  because the draft Resolution covers operations prohibited under 
Articles  3eb  and  3ec  of  Council  Regulation  (EU)  No  833/2014.  Accordingly,  the 
Union    should  ensure  that  any  measure  introduced  at  IMO  level  to  address  “dark 
operations”  the  object  or  effect  of  which  is  to  violate  or  circumvent  sanctions  is 

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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consistent with the measures applicable at Union level pursuant to Articles 3eb and 
3ec of Council Regulation (EU) No 833/2014. 

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 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 maritime 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. 

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2023/0380 (NLE) 

Proposal for a 

COUNCIL DECISION 

on the position to be taken on behalf of the European Union in the International 
Maritime Organization during the 33rd session of the Assembly on the adoption of 
amendments to the Guidelines under the Harmonized System of Survey and 
Certification, the Guidelines on the implementation of the International Safety 
Management Code by Administrations, the Non-exhaustive list of obligations under 
instruments relevant to the IMO Instruments Implementation Code and the Guidelines 
on places of refuge for ships in need of assistance, and the adoption of the draft 
Assembly Resolution to promote actions to prevent illicit operations of “dark shipping” 
in the maritime sector 

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) 

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 IMO Convention, 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 33rd session from 27 November to 6 December 2023, is to 
adopt  the  Guidelines  under  the  Harmonized  System  of  Survey  and  Certification 
(HSSC), 2023, and revoke IMO Assembly resolution A.1156(32), which contains the 
HSSC  Survey  Guidelines,  2021,  to  adopt  amendments  to  the  Guidelines  on  the 
implementation  of  the  ISM  Code  by  Administrations,  to  the  Non-exhaustive  list  of 
obligations under instruments relevant to the III Code and to the Guidelines on places 
of  refuge  for  ships  in  need  of  assistance,  as  well  as  to  adopt  the  draft  Assembly 
Resolution  to  promote  actions  to  prevent  illicit  operations  of  “dark  shipping”  in  the 
maritime sector.  

(5) 

 It is appropriate to establish the position to be taken on the Union’s behalf during the 
33rd session of the IMO’s Assembly, as the envisioned acts are capable of decisively 
influencing  the  contents  of  Union  law,  namely  Regulation  (EC)  No  391/2009  on 

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common rules and standards for ship inspection and survey organisations1, Regulation 
(EC)  No  336/2006  which  incorporates  the  International  Safety  Management  Code 
(ISM  Code) in  the Union legislation2, the Directive 2009/21/EC  on compliance with 
flag State requirements3, the Regulation 2002/59/EC establishing a Community vessel 
traffic  and  monitoring  system4,  the  Council  Decision  2014/512/CFSP  concerning 
restrictive measures in view of Russia's actions destabilising the situation in Ukraine5 
and  the  Council  Regulation  (EU)  No  833/2014  concerning  restrictive  measures  in 
view of Russia's actions destabilising the situation in Ukraine6. 

Therefore,  the  Union  should  support  the  adoption  of  the  HSSC  Survey  Guidelines, 
2023 and the revocation of the HSSC Survey Guidelines 2021 and the amendments to 
the  non-exhaustive  list  of  obligations  under  instruments  relevant  to  the  III  Code 
because this will ensure that they remain up to date. 

The Union should support the amendments to Guidelines on the implementation of the 
ISM  Code  by  Administrations  to  develop  the  guidance  on  assessments  and 
applications of remote audits. 

The Union should support the amendments to the Guidelines on places of refuge for 
ships in need of assistance (resolution A.949(23)) so as to provide a clear framework, 
to deal with a ship seeking a place of refuge, in a consistent and harmonized manner. 

The Union should support the adoption of the draft Assembly Resolution to promote 
actions to prevent illicit operations of “dark shipping” in the maritime sector, which is 
expected to benefit the implementation of Articles 3eb and 3ec of Council Regulation 
833/2014,  to  ensure  that  any  measures  introduced  at  IMO  level  to  address  “dark 
operations”  the  object  or  effect  of  which  is  to  violate  or  circumvent  sanctions    is 
consistent with the measures applicable at Union level. 

(6) 

(7) 

(8) 

(9) 

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

members of the IMO, and by the Commission, acting jointly, 

HAS ADOPTED THIS DECISION: 

Article 1 
The  position  to  be  taken  on  the  Union’s  behalf  in  the  33rd  session  of  the  International 
Maritime  Organization’s  (‘IMO’)  Assembly  shall  be  to  agree  to  the  amendments  to:  the 
Guidelines  under  the  Harmonized  System  of  Survey  and  Certification  (HSSC),  2021,  and 
revoke  IMO  Assembly  resolution  A.1156(32);  to  the  amendments  to  the  Guidelines  on  the 
implementation of the ISM Code by Administrations: to the Non-exhaustive list of obligations 
under instruments relevant to the III Code and the Guidelines on places of refuge for ships in 
need of assistance, and to agree to the adoption of the draft Assembly Resolution to promote 
actions to prevent illicit operations of “dark shipping” in the maritime sector. 

1 
2 
3 
4 
5 
6 

OJ L 131, 28.5.2009, p. 11 
OJ L 64, 4.3.2006, p. 1 
OJ L 131, 28.5.2009, p. 132 
OJ L 208, 5.8.2002, p. 10 
OJ L 229, 31.7.2014, p. 13 
OJ L 229, 31.7.2014, p. 1 

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

Article 2 

This Decision is addressed to the Commission and the Member States.   

Article 3 

Done at Brussels, 

For the Council 
The President 

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