on the amended proposal for a directive of the European Parliament and of the Council on enhancing port security

(COM(2004)0393 – C6-0072/2004 – 2004/0031(COD))

(Codecision procedure: first reading)

The European Parliament,

–   having regard to the Commission proposal to the European Parliament and the Council (COM(2004)0393)(1),

–   having regard to Articles 251(2) and 80(2) of the EC Treaty, pursuant to which the Commission submitted the proposal to Parliament (C6-0072/2004),

–   having regard to Rule 51 of its Rules of Procedure,

–   having regard to the report of the Committee on Transport and Tourism (A6-0031/2005),

1.  Approves the Commission proposal as amended;

2.  Calls on the Commission to refer the matter to Parliament again if it intends to amend the proposal substantially or replace it with another text;

3.  Instructs its President to forward its position to the Council and Commission.

Text proposed by the Commission   Amendments by Parliament Amendment 1 Recital 1 (1) Unlawful acts and terrorism are among the greatest threats to the ideals of democracy and freedom and to the values of peace, which are the very essence of the European Union. (1) Security incidents and terrorism are among the greatest threats to the ideals of democracy and freedom and to the values of peace, which are the very essence of the European Union. Justification The term "unlawful acts" could constrain Member States' ability to decide what is unlawful and an offence. This is an unacceptable constraint on Member States' judicial systems. Amendment 2 Recital 2 (2) The security of people, infrastructure and equipment, including means of transport, in ports as well as in relevant adjacent areas should be protected against unlawful acts and their devastating effects. Such protection would benefit transport users, the economy and society as a whole. (2) The security of people, infrastructure and equipment, including means of transport, in ports should be protected against security incidents and their devastating effects. Such protection would benefit transport users, the economy and society as a whole. Justification In accordance with the subsidiarity principle, it is for Member States to determine whether or not the Directive should also apply to areas outside the port. The term "unlawful acts" could constrain Member States' ability to decide what is unlawful and an offence. This is an unacceptable constraint on Member States' judicial systems. Amendment 3 Recital 4 (4) In order to achieve the fullest protection possible for maritime and port industries, port security measures should be introduced. They should extend beyond the ship/port interface and cover the entire port thus both protecting the port areas and ensuring that security measures taken in application of Regulation (EC) Nr. …/…. benefit from enhanced security in adjacent areas. These measures should apply to all those ports in which one or more port facilities are situated which are covered by Regulation (EC) Nr. …/…. . (4) In order to achieve the fullest protection possible for maritime and port industries, port security measures should be introduced. They should extend beyond the ship/port interface and cover the entire port thus both protecting the port areas and ensuring that security measures taken in application of Regulation (EC) No 725/2004 on enhancing ship and port facility security * benefit from enhanced security in areas of port activity. These measures should apply to all those ports in which one or more port facilities are situated which are covered by Regulation (EC) No 725/2004.   * OJ L 129, 29.4.2004, p. 6. Justification It is important to prevent ambiguities in terminology from resulting in a situation where the directive is not applicable outside the confines of ports where there are high-risk activities and plants (for example petrochemical plants). Amendment 4 Recital 12 a (new)   (12a) The funding of extra security measures should not generate distortions of competition. The financial study announced in recital 15 of Regulation (EC) No 725/2004 should also cover the costs involved in measures taken under this directive and establish guidelines for cost-sharing between the public authorities, port authorities and operators. By 31 December 2005 at the latest, the Commission should submit the findings of this study to the European Parliament and the Council.     Justification Supports the rapporteur's proposal for a study on sharing the costs involved in this directive. However, the costs need not by definition be shared between the authorities and operators as port authorities are also important parties, and are not synonymous with the public authorities in all ports. Amendment 5 Article 1, paragraph 1, subparagraph 2 It shall also ensure that security measures taken in application of Regulation (EC) Nr. …/…. benefit from enhanced security in adjacent port areas. It shall also ensure that security measures taken in application of Regulation (EC) No725/2004 benefit from enhanced port security. Justification Under Article 2 of the directive is up to the Member States themselves to identify for each port the boundaries for the purposes of this directive. In accordance with the subsidiarity principle, it should therefore be up to the Member States to determine whether or not the directive should also apply to areas outside ports. Amendment 6 Article 2, paragraph 1 1. This directive addresses security measures which need to be observed by or affect people, infrastructure and equipment, including means of transport, in ports as well as in adjacent areas where these have a direct or indirect impact on security in the port. 1. This directive addresses security measures which need to be observed by or affect people, infrastructure and equipment, including means of transport, in ports. Member States may apply the provisions of this Directive to port-related areas. Justification Under Article 2 of the directive is up to the Member States themselves to identify for each port the boundaries for the purposes of this directive. In accordance with the subsidiarity principle, it should therefore be up to the Member States to determine whether or not the directive should also apply to areas outside ports. Amendment 7 Article 10 Port security committee deleted 1. Member States shall ensure that port security committees are established to provide practical advice in the ports covered by this directive, unless the specificity of a port renders such committees superfluous.   2. The membership of the port security committee may vary between ports, but should always reflect the operational and public authority functions in a port. It shall function on a ‘need to know basis’.   Justification Amendment 8 Article 14, paragraph 3, subparagraph 2 The Member State concerned shall submit to such inspections and shall ensure that bodies or persons concerned also submit to those inspections. The Member State concerned shall submit to such inspections and shall ensure that bodies or persons concerned also submit to those inspections. The Commission and the bodies concerned in the Member States shall coordinate the various inspections so as to keep disruption to ports and the administrative burden on inspection bodies to a minimum. Justification Amendment 9 Article 19 a (new) Article 19a   Evaluation report   No later than [three years after the entry into force of the directive] and every five years thereafter, the Commission shall submit an evaluation report to the European Parliament and the Council based, among other things, on the information obtained pursuant to Article 14. In the report, the Commission shall analyse compliance with the directive by the Member States and the effectiveness of the measures taken. If necessary, it shall present proposals for additional measures. Justification Periodic evaluations of implementation of the directive are necessary in order to keep up to date with any new threats to port security.

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Ports are an essential link within the transport chain, linking up maritime with landside trade and passenger flows. Ports are often the focal point for trans-shipments of dangerous cargo, for major chemical and petrochemical production centres, and are often situated near cities. Terrorist attacks in ports can result in serious disruptions to transport systems and trigger knock-on effects, as well as harming people in the port and the neighbouring population.

Following the attacks in Washington, New York and Madrid, in spring 2004 the European institutions reached agreement on a regulation on enhancing ship and port facility security

(Regulation 75/2004 - Miguélez Ramos report). This regulation transposed recent IMO agreements into European legislation, including amendments to the Convention for the Safety of Life at Sea (SOLAS) and the Code on international ship and port facility security (ISPS-code). The regulation requires vessels to provide security information to the authorities before they put in to port; it also requires ports to introduce safety checks and Member States to appoint a special body for maritime security.

When that regulation was discussed, Parliament was not alone in saying that security measures should not be restricted to port terminals but should also extend to the whole port and ultimately the entire intermodal chain. The present proposal for a directive meets that request.

Summary of the proposal

An IMO-ILO Working Group drew up a Code of Practice on Port Security in spring 2004. The code entered into force in July 2004 but as it is only a code of conduct it is not legally binding. In this proposal the Commission has tried to keep as closely as possible to the code. The directive aims to increase security in ports and in adjacent areas not covered by Regulation 75/2004.

The directive defines the actors and procedures that are crucial to enhancing security. It calls on Member States to designate a port security authority and appoint a port security officer for each individual port. There is also a requirement to set up an advisory port security committee. Finally the Member States are to appoint focal points to notify the Commission of the contact details of the port security authorities and port security officers

The directive also requires Member States to arrange for port security assessments as a basis for establishing port security plans. These assessments and plans are to be reviewed at regular intervals. In addition, Member States are to introduce a system with three security levels. The Commission is to monitor Member States' implementation of the directive through a series of inspections.

Finally, the directive contains provisions on confidentiality and the dissemination of information.

Council's general approach

On 10 June 2004, pending Parliament's first reading, the Transport Council agreed on a general approach to the directive. The Council's approach broadly endorses the Commission proposal but contains, along with drafting changes, the following substantive amendments:

· the Council has restricted the scope of the directive in principle to ports and excludes military installations in ports, whereas the Commission also wants to include 'adjacent areas' within the scope of the directive.

· The Council has deleted Article 10 which provides for setting up of advisory port security committees.

· The Council has restricted the tasks of the focal points for port security.

· The Council has deleted the provision that the Commission should carry out inspections to monitor implementation of the directive by Member States.

Rapporteur's position

Your rapporteur welcomes the proposal for a directive as a useful measure to enhance port security. Opting for a harmonised European approach will also avoid distortions of competition between European ports.

The Commission is also to be congratulated on keeping as closely as possible in the text of the directive to the terminology and definitions used in the IMO documents referred to above (SOLAS, ISPS-code, Code of Practice on Port Security) and those used in Regulation 75/2004. This enhances transparency and legal certainty and reduces the administrative burden on the organisations and authorities involved. However, it is regrettable that the Commission has opted for a directive instead of extending the scope of the existing terminal regulation to all port areas. This results in divergent and at times overlapping legislative measures existing alongside each other, which is not conducive to transparency. And when it comes to rolling back regulation, this approach is of no help at all.

The following amendments seek to improve specific aspects of the proposal for a directive.

Scope of application of the directive

Like the Council, your rapporteur cannot accept that the scope of the directive should also apply to adjacent port areas. There is no clear definition of what constitute relevant 'adjacent port areas'. Furthermore, such areas frequently do not come under the jurisdiction of the port authority. The definition of what constitutes a port area and the decision whether or not to extend the directive to adjacent areas should therefore be left to the discretion of Member States.

Study on the funding of port security

The earlier Regulation 725/2004 requires the Commission to carry out a study into cost-sharing between the authorities and operators. A similar study is also required for the present proposal. At this stage it is not clear what costs the proposed measures would entail and who should cover them. This is not in the interests of a level playing field.

Port security committee

It should be left up to the ports and Member States to decide how they choose to obtain advice on the various aspects of port security. The provision requiring the setting up of a port security advisory committee can therefore be deleted.

Commission inspections

The success of this directive stands or falls by its effective implementation and enforcement. In this context, and in the interests of a level playing field, the Commission must be able to carry out inspections. Regulation 75/2004 on enhancing ship and port facility security also contains provisions to this effect. However, the Commission must ensure that its inspections do not create unnecessary additional bureaucracy or cause disruption to ports as a result of an excessive number of uncoordinated inspections.

Information for Parliament and Council

As stated earlier, proper implementation and enforcement of this directive are crucial to ensure both port security and a level playing field. The Commission is therefore asked to report to Parliament and the Council at regular intervals and to assess whether adjustments to the directive are required because of changes in the terrorist threat or for other reasons. In the financial impact statement for the proposal for a directive the Commission mentions a follow-up evaluation. This evaluation, together with the information gained from inspections, will provide a basis for a report to Parliament and the Council.

SHORT JUSTIFICATION

The European Commission adopted its amended proposal for a Directive of the European Parliament and of the Council on enhancing port security on 28 May 2004. This proposal has to be treated under the codecision procedure and the ITRE Committee has been called to deliver an opinion for the Committee on Transport and Tourism.

This proposal for a Directive intends to enhance security in those areas of ports not covered by Regulation (EC) No 725/2004 of the European Parliament and of the Council of 31 March 2004 on enhancing ship and port facility security.

Your Draftsman believes that such a proposal is adequate in order to fulfil its objectives, but nevertheless points out that there are some issues that are not addressed satisfactorily, namely:

· the European Commission has not provided a proper cost-benefit analysis nor an adequate impact assessment of the costs resulting from the application of this Directive;

· the proposal makes no reference to the funding or financing of the measures proposed in the Directive.

On the other hand, a positive aspect of the proposal is that it provides a certain degree of flexibility for Member States when implementing the Directive that should be maintained -and even reinforced- during the legislative process. This flexibility mainly refers to:

· the scope and definition of a port (Article 2): the identification of the boundaries of each port should always be entirely based on the information from the port security assessment;

· the security levels (Article 8): the security plan with 3 levels seems adequate; security measures should be proportionate and allow different security regimes for different areas of the port;

· cooperation between relevant security authorities, (i.e. port security officer, port security committee..) should be enhanced and the flexibility given in the proposal for these issues seems appropriate and should be maintained.

AMENDMENTS

The Committee on Industry, Research and Energy calls on the Committee on Transport and Tourism, as the committee responsible, to incorporate the following amendments in its report:

Text proposed by the Commission(1)   Amendments by Parliament Amendment 1 Recital 12 a (new)   (12a) The application of the measures included in this Directive raises important questions in relation to its financing. The financing of such measures should not lead to distortion of competition. The financial study referred to in Recital 15 of Regulation (EC) No 725/2004 of 31 March 2004 on enhancing ship and port facility security1 should also take into account the costs and funding of the measures included in this Directive and draw up guidelines for the financing of these costs between public authorities and operators. The Commission should, by 31 December 2005 at the latest, present the results of this study, and, if appropriate, any proposals to the European Parliament and the Council.   1 OJ L 129, 29.4.2004, p. 6. Justification This recital rectifies the clear omission of a reference to the costs arising from the requirements of this Directive.

PROCEDURE

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SHORT JUSTIFICATION

The Committee on Civil Liberties, Justice and Home Affairs has been asked for its opinion on the proposal for a directive on enhancing port security. The committee is particularly interested in this issue because, in its amended proposal (COM(2004)0393), the Commission extended the scope of the security measures to include roll-on roll-off ferries carrying passengers and/or cargo. As already happens in the air transport sector, when the directive enters into force ferry passengers will be subjected to checks before they are allowed to embark. It will be left to the Member States to decide which types of ferry and which ports these provisions will apply to, on the basis of an assessment of security levels in ports and the subsequent drafting of a port security plan.

The proposal for a directive is a valuable prevention tool in Europe's fight against terrorism and forms part of a package of measures which is soon to include a proposal for a directive covering the entire intermodal chain and seeking to ensure security at every stage in a product's journey from manufacturer to final destination.

Draftsman's position

The draftsman fully endorses both the substance of and thinking behind the directive. Port security plans will not only ensure greater protection against possible terrorist attacks, but will also reinforce measures to combat illegal immigration, drug trafficking and the counterfeiting of goods.

The draftsman endorses the Commission's approach, both as regards the directive's aim, which is to make ports more secure against the threat of intentional unlawful acts and as regards the possibility of carrying out Community inspections with a view to monitoring implementation of the directive by the Member States.

The draftsman agrees with the views expressed by the rapporteur of the Committee on Transport and Tourism and by the Council to the effect that "adjacent port areas" should be excluded from the directive's scope, with the Member States themselves defining what constitutes a port area.

The draftsman would like the Commission at the earliest opportunity to make a detailed analysis of the cost of implementing the directive and how that cost should be shared among public authorities and private operators.

AMENDMENTS

The Committee on Civil Liberties, Justice and Home Affairs calls on the Committee on Transport and Tourism, as the committee responsible, to incorporate the following amendments in its report:

Text proposed by the Commission(1)   Amendments by Parliament Amendment 1 Recital 1 (1) Unlawful acts and terrorism are among the greatest threats to the ideals of democracy and freedom and to the values of peace, which are the very essence of the European Union. (1) Unlawful acts and, more particularly, terrorism and organised crime are among the greatest threats to the ideals of democracy and freedom and to the values of peace, which are the very essence of the European Union. Justification Improvement of port security should not be confined to fighting terrorism but should also include organised crime, since ports are often used as locations for trafficking, especially human trafficking. Amendment 2 Recital 2 (2) The security of people, infrastructure and equipment, including means of transport, in ports as well as in relevant adjacent areas should be protected against unlawful acts and their devastating effects. Such protection would benefit transport users, the economy and society as a whole. (2) The security of people, infrastructure and equipment, including means of transport, in ports should be protected against unlawful acts and their devastating effects. Such protection would benefit transport users, the economy and society as a whole. Justification It should be up to the Member States to define adjacent areas. Amendment 3 Article 2, paragraph 1 1. This directive addresses security measures which need to be observed by or affect people, infrastructure and equipment, including means of transport, in ports as well as in adjacent areas where these have a direct or indirect impact on security in the port. 1. This directive addresses security measures which need to be observed by or affect people, infrastructure and equipment, including means of transport, in ports. Justification It should be up to the Member States to define adjacent areas.

Amendment 4

Article 2, paragraph 3

Justification

To clarify the fact that the Member States are competent to define the concept of ‘adjacent areas’.

Amendment 5 Article 10 Article 10 deleted Port security committee   1. Member States shall ensure that port security committees are established to provide practical advice in the ports covered by this directive, unless the specificity of a port renders such committees superfluous.   2. The membership of the port security committee may vary between ports, but should always reflect the operational and public authority functions in a port. It shall function on a ‘need to know basis’.   Justification On the basis of the subsidiarity principle, there is no need for an advisory committee. Amendment 6 Article 14, paragraph 3, subparagraph 2 The Member State concerned shall submit to such inspections and shall ensure that bodies or persons concerned also submit to those inspections. The Member State concerned shall submit to such inspections and shall ensure that bodies or persons concerned also submit to those inspections. The Commission and the bodies responsible within the Member States shall take the necessary steps to ensure that the inspections cause the least possible disruption to ports. Amendment 7 Article 19 a (new) Article 19a   Evaluation report   No later than three years after the entry into force of the directive, and every five years thereafter, the Commission shall submit an evaluation report to the European Parliament and the Council based, among other things, on the information obtained pursuant to Article 14. In the report, the Commission shall analyse compliance with the directive by the Member States and the effectiveness of the measures taken. If necessary, it shall present proposals for additional measures. Justification Periodic evaluations of implementation of the directive are necessary in order to keep up to date with any new threats to port security.

PROCEDURE

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