Procedure : 2005/0240(COD)
Document stages in plenary
Document selected : A6-0079/2007

Texts tabled :

A6-0079/2007

Debates :

PV 24/04/2007 - 11
CRE 24/04/2007 - 11

Votes :

PV 25/04/2007 - 11.4
CRE 25/04/2007 - 11.4
Explanations of votes

Texts adopted :

P6_TA(2007)0147

REPORT     ***I
PDF 220kWORD 165k
27 March 2007
PE 378.593v02-00 A6-0079/2007

on the proposal for a directive of the European Parliament and of the Council establishing the fundamental principles governing the investigation of accidents in the maritime transport sector and amending Directives 1999/35/EC and 2002/59/EC

(COM(2005)0590 – C6-0056/2006 – 2005/0240(COD))

Committee on Transport and Tourism

Rapporteur: Jaromír Kohlíček

EUROPEAN PARLIAMENT LEGISLATIVE RESOLUTION
 EXPLANATORY STATEMENT
 PROCEDURE

EUROPEAN PARLIAMENT LEGISLATIVE RESOLUTION

on the proposal for a directive of the European Parliament and of the Council establishing the fundamental principles governing the investigation of accidents in the maritime transport sector and amending Directives 1999/35/EC and 2002/59/EC

(COM(2005)0590 – C6-0056/2006 – 2005/0240(COD))

(Codecision procedure: first reading)

The European Parliament,

–   having regard to the Commission proposal to the European Parliament and the Council (COM(2005)0590)(1),

–   having regard to Article 251(2) and Article 80(2) of the EC Treaty, pursuant to which the Commission submitted the proposal to Parliament (C6-0056/2006),

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

–   having regard to the report of the Committee on Transport and Tourism (A6-0079/2007),

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 11

(11) Investigation of casualties and incidents involving seagoing vessels, or other vessels in port or other restricted maritime areas, should be carried out by or under the control of an independent body or entity in order to avoid any conflict of interest.

(11) Investigation of accidents and events involving seagoing vessels, or other vessels in port or other restricted maritime areas, should be carried out by or under the control of a body or entity endowed in permanent fashion with the powers enabling it to take such decisions as it deems necessary, in order to avoid any conflict of interest, with the criterion of the independence of the body or entity being considered essential when constituting it.

Justification

Independence is meaningless if the entity has to be responsible to or consult the authority appointing it. It needs full powers to enforce its decisions.

The aim is to ensure the independence of the body or entity carrying out the investigation.

Amendment 2

RECITAL 17

(17) According to Regulation (EC) No 1406/2002, the Agency must facilitate cooperation in the provision of the support of the Member States in activities concerning investigations related to serious maritime accidents, and in the carrying out of an analysis of existing accident investigation reports.

(17) According to Regulation (EC) No 1406/2002, the Agency must facilitate cooperation in the provision of the support of the Member States in activities concerning investigations related to serious maritime accidents, and in the carrying out of an analysis of existing accident investigation reports. The Agency must also, in the light of the results of the analyses, incorporate into the joint methodology any elements arising therefrom which may be of interest for the prevention of new disasters and the improvement of maritime safety in the EU.

Justification

The development of a joint methodology for investigating maritime accidents, as attributed to the Agency by Regulation (EC) No 1406/2002, should enable it to incorporate the new elements obtained from the analysis of the conclusions of the investigations carried out, with potential positive implications for improving maritime safety.

Amendment 3

RECITAL 17 A (new)

 

(17a) The IMO guidelines on the fair treatment of seafarers in the event of a maritime accident do not aim to criminalise the captain and crew. They could give them more confidence in the investigation methods, and should therefore be used by the Member States.

Justification

These guidelines adopted in June by the IMO (Circular 2711) could, in your rapporteur's view, provide a helpful complement to this directive. They were developed in view of the risk of increasing criminalisation of ships’ crews after accidents. This directive is not immediately concerned with questions of liability and criminal responsibility, but the IMO guidelines also contain sensible principles for technical investigations.

Amendment 4

RECITAL 18

(18) The safety recommendations resulting from a casualty or incident safety investigation should be duly taken into account by the Member States.

(18) The safety recommendations resulting from an accident or incident safety investigation should be duly taken into account by the Member States and the Community.

Justification

Legal clarification.

Amendment 5

ARTICLE 1, PARAGRAPH 2

Investigations under this Directive shall not be concerned with determining liability nor, except so far as is necessary to achieve its objective, apportioning blame.

Investigations under this Directive shall not be concerned with determining liability nor apportioning blame.

Justification

It is necessary to ensure a clear separation and distinction between technical and criminal investigations.

Optimal results of investigation could only be reached when there is a strict distinction between an independent investigation to improve the safety in the maritime sector or this proposal on one hand and apportioning blame on the other hand.

Amendment 6

ARTICLE 2, PARAGRAPH 1, INTRODUCTORY PART

1. This Directive shall apply to marine casualties, incidents and distress alerts that:

1. In accordance with Member States' obligations under the United Nations Convention on the Law of the Seas (UNCLOS), this Directive shall apply to marine casualties, incidents and distress alerts that:

Justification

The scope should emphasize the overall UN legal framework.

Amendment 7

ARTICLE 3, PARAGRAPH 8

8. ‘Safety recommendation’ means any proposal made by either of the following:

8. ’Safety recommendation’ means any proposal made, including for purposes of registration and control, by either of the following:

(a) the investigative body of the State conducting, or leading, the marine casualty or incident safety investigation on the basis of information derived from that investigation; or, where appropriate;

(a) the investigative body of the State conducting, or leading, the marine casualty or incident safety investigation on the basis of information derived from that investigation; or, where appropriate;

(b) the Commission, acting on the basis of an abstract data analysis.

(b) the Commission, acting with the assistance of the Agency and on the basis of an abstract data analysis and the results of the investigations carried out.

Justification

Cooperation in the field of maritime safety between Member States improves the workings of the whole system, since the exchange of information and proposals brings greater flexibility and effectiveness to the controls of the flag state at the authorisation stage and of the state of arrival when the vessel docks.

The present directive should permit the full resumption of the corrective measures which are only possible on the basis of the analysis of the diverse investigations.

Amendment 8

ARTICLE 4, PARAGRAPH 1, POINT (A)

(a) are independent from criminal or other parallel investigations held to determine liability or apportion blame; and

(a) are independent from criminal or other investigations held to determine liability or apportion blame, allowing that only the conclusions or recommendations arising from investigations initiated under this Directive can contribute to other parallel investigations; and

Amendment 9

ARTICLE 4, PARAGRAPH 1, SUBPARAGRAPH 2 (new)

 

Furthermore, Member States shall ensure that in the course of such investigations, witnesses are protected from having their statements or other information provided by them obtained by third country authorities so as to prevent such statements or information from being used in criminal investigations in the countries in question.

Justification

Those persons giving evidence to technical accident investigations should be ensured of immunity from prosecution on the basis of their testimony. It is of considerable concern that a statement volunteered for a technical investigation may be used for a criminal investigation, thus undermining an individual’s willingness to contribute useful information to the safety related investigation.

Amendment 10

ARTICLE 4, PARAGRAPH 2, POINT (B A) (new)

 

(ba) rapid alert measures in case of accident or incident.

Justification

The aim is to ensure that the investigations are more effective.

Amendment 11

ARTICLE 5, PARAGRAPH 4

4. Safety investigations shall follow the common methodology for investigating marine casualties and incidents developed pursuant to Article 2(e) of Regulation (EC) No. 1406/2002. The adoption or modification of such methodology for the purposes of this Directive shall be decided in accordance with the procedure laid down in Article 18(2).

4. Safety investigations shall follow the common methodology for investigating marine casualties and incidents developed pursuant to Article 2(e) of Regulation (EC) No. 1406/2002. The adoption, updating or modification of such methodology for the purposes of this Directive shall be decided in accordance with the procedure laid down in Article 18(2a).

Justification

The joint methodology should be regularly updated, incorporating the conclusions which, in the framework of accident research, are liable to improve maritime safety.

Amendment 12

ARTICLE 5, PARAGRAPH 5

5. A safety investigation shall be started as promptly as is practicable after the marine casualty or incident occurs.

5. A safety investigation shall be started as promptly as is practicable after the marine casualty or incident occurs and no later than two months after its occurrence.

Justification

The aim is to ensure that the investigation begins within a given time-limit, thus increasing legal certainty in respect of the paragraph.

Amendment 13

ARTICLE 7, PARAGRAPH 1, SUBPARAGRAPH 1

In cases of serious and very serious casualties involving a substantial interest for two or more Member States, the Member States concerned shall rapidly agree which of them is to be the lead investigating Member State.

In cases of serious and very serious casualties involving a substantial interest for two or more Member States, the Member States concerned shall rapidly agree which of them is to be the lead investigating Member State. Should the Member States concerned not determine which Member State is to lead the investigation, they shall immediately implement a recommendation by the Commission on the matter, based on an opinion from the Agency.

Justification

The aim is to suggest a solution where there is a disagreement over which Member State should lead the investigation, while ensuring the full effectiveness of the paragraph.

Amendment 14

ARTICLE 8, PARAGRAPH 1, SUBPARAGRAPH 1

Member States shall ensure that investigations are conducted under the responsibility of an impartial permanent investigative body or entity (hereinafter referred to as “investigative body”), and by suitably qualified investigators, competent in matters relating to marine casualties and incidents.

Member States shall ensure that marine casualty or incident safety investigations are conducted under the responsibility of an investigative body or entity (hereinafter referred to as “investigative body”) equipped on a permanent basis with the necessary powers and consisting of investigators who are suitably qualified in matters relating to marine casualties and events.

Justification

Impartiality is meaningless if the entity has to be responsible to or consult the authority appointing it. It needs full powers to enforce its decisions.

Amendment 15

ARTICLE 8, PARAGRAPH 1, SUBPARAGRAPH 2

That investigative body shall be functionally independent of, in particular, the national authorities responsible for seaworthiness, certification, inspection, manning, safe navigation, maintenance, sea traffic control, port state control, operation of seaports and, in general, of any other party whose interests could conflict with the task entrusted to it.

That investigative body shall be functionally independent of, in particular, the national authorities responsible for seaworthiness, certification, inspection, manning, safe navigation, maintenance, sea traffic control, port state control and operation of seaports, of bodies undertaking investigations for purposes of liability or law enforcement and, in general, of any other party whose interests could conflict with the task entrusted to it.

Justification

Those persons giving evidence to technical accident investigations should be ensured of immunity from prosecution on the basis of their testimony. It is of considerable concern that a statement volunteered for a technical investigation may be used for a criminal investigation, thus undermining an individual’s willingness to contribute useful information to the safety related investigation.

Amendment 16

ARTICLE 9, INTRODUCTORY PART

Member States shall ensure that the following records are not made available for purposes other than the safety investigation, unless the appropriate judicial authority in that State determines that the interest in their disclosure outweighs the adverse domestic and international impact that such action may have on that investigation or on any future investigations:

Member States shall ensure that the following records are not made available for purposes other than the safety investigation:

Justification

The records mentioned above should only be used for the purpose of safety investigation. When the records are used for judicial purpose this could harm investigations in the future.

Amendment 17

ARTICLE 14, PARAGRAPH 2

2. Investigative bodies shall make every effort to make a report available to the public within 12 months from the day of the casualty. If it is not possible to produce the final report within that time, an interim report shall be published within 12 months from the date of the casualty.

2. Investigative bodies shall make every effort to make a report available to the public, and especially to the entire maritime sector, which shall receive specific conclusions and recommendations, when needed, within 12 months from the day of the casualty. If it is not possible to produce the final report within that time, an interim report shall be published within 12 months from the date of the casualty.

Justification

If it is important that the reports arising from the investigations should be available to the public, it is even more so that they should be made available to the maritime sector, which will have to implement their recommendations.

Amendment 18

ARTICLE 14, PARAGRAPH 3 A (new)

 

3a. Every three years, the Commission shall provide information to the European Parliament in the form of a report which shall set out the degree of implementation and compliance with this Directive, as well as the further steps considered necessary in the light of the recommendations set out in the report.

Justification

The EP is mentioned in the explanatory statement as the guiding force behind the proposal for a directive, but is not referred to again after that.

Amendment 19

ARTICLE 15, PARAGRAPH 1

1. Member States shall ensure that safety recommendations made by the investigative bodies are duly taken into account by the addressees and, where appropriate, acted upon in accordance with Community and international law.

1. Member States shall ensure that safety recommendations made by the investigative bodies are duly taken into account by the addressees and, where appropriate, acted upon in accordance with Community and international law. The Commission, acting with the assistance of the Agency, shall incorporate into the joint methodology the conclusions of the accident reports and the safety recommendations contained therein.

Justification

It is vital to recall the role of the Commission, acting through the European Maritime Safety Agency, in the designing of the joint methodology (which itself needs to be updated).

Amendment 20

ARTICLE 15, PARAGRAPH 2

2. Where appropriate, an investigative body or the Commission shall make safety recommendations on the basis of an abstract data analysis.

2. Where appropriate, an investigative body or the Commission, acting with the assistance of the Agency, shall make safety recommendations on the basis of an abstract data analysis and of the results of any investigations carried out.

Justification

The present directive should permit the full resumption of the corrective measures which are only possible on the basis of the analysis of the diverse investigations. These measures should logically be a matter for the Commission, acting through the Agency.

Amendment 21

ARTICLE 15, PARAGRAPH 2

2. Where appropriate, an investigative body or the Commission shall make safety recommendations on the basis of an abstract data analysis.

(Does not affect English version.)

Justification

(Does not affect English version.)

Amendment 22

ARTICLE 17 A (new)

 

Article 17 a

 

Fair treatment of seafarers

 

The Member States shall comply with the IMO guidelines on the fair treatment of seafarers in the event of a maritime accident.

Justification

These guidelines adopted in June by the IMO (Circular 2711) could, in your rapporteur's view, provide a helpful complement to this directive. They were developed in view of the risk of increasing criminalisation of ships’ crews after accidents. This directive is not immediately concerned with questions of liability and criminal responsibility, but the IMO guidelines also contain sensible principles for technical investigations.

Amendment 23

ARTICLE 18, PARAGRAPH 2 A (new)

 

2a. Where reference is made to this paragraph, Article 5a(1) to (4), and Article 7 of Decision 1999/468/EC shall apply, having regard to the provisions of Article 8 thereof.

Amendment 24

ARTICLE 20

Nothing contained in this Directive shall prevent a Member State from taking additional measures on maritime safety which are not covered by this Directive, provided that such measures do not infringe this Directive or in any way adversely affect its attainment.

Nothing contained in this Directive shall prevent a Member State from taking additional measures on maritime safety which are not covered by this Directive, provided that such measures do not infringe this Directive or in any way adversely affect its attainment, nor jeopardise the realisation of the objectives of the Union.

Justification

Legal clarification.

(1)

Not yet published in OJ.


EXPLANATORY STATEMENT

1. Preliminary remarks and background

This proposal is part of the third package of legislative measures on improving maritime safety. The directive aims to lay down guidelines at Community level on technical investigations and exchange of experience after serious incidents at sea.

The Commission White Paper on ‘European transport policy for 2010: time to decide’ had already pointed out the need to carry out independent technical investigations for all modes of transport. The Commission took the view that such investigations should be initiated by an individual Member State but follow a European model: they should be based first on an analysis of the causes of the accident and secondly the results should focus on risk prevention and improving the legal framework.

With regard to maritime transport, recent accidents have clearly shown up the need for action. Member States do not always automatically and rapidly conduct technical investigations of serious accidents at sea and produce clear and usable results.

After the Prestige disaster the European Parliament set up the Temporary Committee on Improving Safety at Sea (the ‘MARE’ Committee). In its resolution Parliament underlined the need for a Commission proposal on investigating accidents at sea.

Parliament also called for the Commission proposal to introduce a system to ensure optimal exchange of the results of investigations between Member States, the Commission and the EMSA, as well as the independence of the investigation.

Existing legislation in this area

At EU level there are already some legal ‘building blocks’ on investigating accidents.

Directive 1999/35/EC lays down principles on investigating accidents and incidents at sea involving ro-ro passenger ferries or high-speed passenger craft.

Directive 2002/59/EC establishing a Community vessel traffic monitoring and information system focuses on the use of ‘maritime black boxes’.

Regulation (EC) No 1406/2002 establishing the European Maritime Safety Agency gave it several tasks related to maritime accidents, such as:

· facilitating cooperation between the Member States and the Commission in developing a common methodology for investigating maritime accidents,

· supporting the Member States in investigations into serious maritime accidents,

· analysing existing accident investigation reports.

At IMO level a resolution (A.849(20) on a code for investigating marine casualties and incidents was adopted in 1997. This includes only recommendations to the flag States.

While, apart from these regulations, there are at present no binding international maritime transport rules on investigating serious incidents, since 1994 the Community has had rules for similar action in air transport: Regulation 94/56 establishing the fundamental principles governing the investigation of civil aviation accidents and incidents builds on principles which are also included in this proposal.

For the railway sector, Chapter V of Directive 2004/49/EC on railway safety includes similar provisions to those on maritime transport in this Commission proposal.

2. Content of the proposal

It is important first to state that the investigations referred to in this proposal are not concerned with determining civil liability or criminal responsibility. The draft directive is concerned rather with technical investigations to determine the causes of accidents at sea so that lessons can be learned.

The proposal should contribute to improving maritime transport safety by establishing a framework to ensure

· rapid safety investigations

· careful analysis of accidents and incidents at sea

· appropriate reporting and proposals to remedy any shortcomings.

Field of application

The directive applies not only to accidents and incidents at sea involving ships flying the flag of a Member State, but also to accidents and incidents in the territorial waters of a Member State (Article 2).

The key part of the proposal is Articles 4 and 5, which provide that Member States must lay down rules for the conduct of marine casualty or incident safety investigations, independently of any criminal or civil liability investigations, which must not hinder or delay them. Member States must also ensure that an investigation is carried out by an investigative body after serious or very serious marine casualties. This applies not only when the incident involves a ship flying that country’s flag, but also if it occurs in its territorial waters or involves a substantial interest of that country.

Investigative bodies (Article 8)

The directive establishes the Member States' duty to ensure that the investigations are carried out under the responsibility of an impartial permanent investigative body. This body must be functionally independent of authorities responsible for seaworthiness, certification, port state control, etc. A report on the results of the investigation, in accordance with guidelines included in the directive, must be published within 12 months of the incident (Article 14).

Cooperation aspects

The directive includes several guidelines on cooperation. It lays down principles for cooperation between Member States in the event of (very) serious accidents (Art. 7) and also calls for a framework for permanent cooperation between Member States (Art. 10). It also states clearly that the Member States must cooperate with third countries and enable them also to take part in investigations (Art. 12).

Article 9 of the directive covers the use of information that has been collected in the course of an investigation. This as a general rule must not be used for other purposes than the safety investigation. Relevant data must be preserved in accordance with Article 13.

The Commission will set up a European electronic database known as the ‘European Marine Casualty Information Platform’ (Art. 17), to which the Member States' investigative bodies will report maritime accidents and projects in a standardised format.

The Member States are of course not prevented from taking additional measures on maritime safety, as long as such measures do not conflict with the proposal. They must lay down effective and proportionate penalties for infringements of national provisions adopted pursuant to this proposal.

3. Rapporteur's comments

Your rapporteur considers that the thrust of the proposal is sensible and that most elements are immediately clear.

The following points seem particularly important.

· Even though the understandable public reaction to an accident at sea is to ask who was responsible, from a safety point of view the proposal's separation of safety from criminal investigations is an essential element, if we are to learn lessons from incidents. Your rapporteur certainly takes the view that the Commission in Article 1 has found an appropriate formulation of the concept that investigations under this proposal will not be concerned with determining liability or apportioning blame, except so far as is necessary to achieve the objective of the investigation. Completely ruling out this possibility, as suggested by the European Community Shipowners' Association (ECSA) and the International Chamber of Shipping (ICS), would in your rapporteur's view go too far and restrict the investigative bodies too much.

The same is true for Article 9 (Non-disclosure of records) which states that information can only made available for purposes other than the safety investigation if the appropriate judicial authority in that State determines that the advantage of disclosure outweighs the adverse impact on that investigation or on any future investigations. The ECSA and ICS are also in favour of deleting this exclusion. Your rapporteur does not share these doubts about a possible decision by the judicial authorities; the Commission proposal represents a sensible balance of interests.

· The second key point is the establishment of a permanent investigative body and its separation from authorities with other responsibilities in the maritime area. It seems obvious that speedy and reliable results can only be ensured by a permanent body; in many cases ad hoc intervention would not be sufficient. It is also undoubtedly logical that this body should be strictly functionally independent.

Your rapporteur considers that the technical investigation of accidents in all areas of industry and transport is essential, he therefore points out that appropriate rules are also needed for transport on inland waterways.

In his efforts to gain a comprehensive picture of all aspects of the Commission proposal, your rapporteur has made contact with bodies including the EMSA and a number of Member States. The EMSA also underlines the need for this draft directive.

With regard to the Member States, your rapporteur gained the impression that they are still forming their opinions on this proposal. He did not receive any specific comments from them on the Commission proposal. Possibly this is because other parts of the maritime safety package currently take priority, as also in the Council. It is understandable that the Member States cannot consider all of the seven proposals in the maritime package simultaneously with the same intensity. Nevertheless your rapporteur hopes that the proposal on investigation of accidents at sea will not always be ranked lower than the other proposals. The Finnish and German Council Presidencies should take up this dossier.

Your rapporteur considers that somewhat more time for consultation of those affected would have been useful. Nevertheless he considers it important that this Commission proposal is discussed at the same time as the other components of the maritime package. Your rapporteur is therefore tabling this report now and with only a few amendments, as he has so far not discovered any major shortcomings in the Commission proposal.

The amendments are concerned on the one hand with the field of application: your rapporteur does not considers it advisable, as proposed by the Commission, to exclude fishing vessels of less than 24 metres length and offshore drilling facilities - fishing is dangerous and accidents are quite common - see Amendments 2 and 3.

Your rapporteur has also tabled two amendments on the recently-adopted IMO guidelines on the fair treatment of crews in the event of maritime accidents. These recommendations for coastal and flag States, shipowners etc contain important principles for technical investigations as well and can increase the confidence of seafarers in such investigations and thus facilitate cooperation between investigative bodies and crews (see Amendments 1 and 4).

Your rapporteur will continue his consultations and does not rule out tabling further amendments at a later date.


PROCEDURE

Title

Investigation of accidents in the maritime transport sector

References

COM(2005)0590 - C6-0056/2006 - 2005/0240(COD)

Date submitted to Parliament

23.11.2005

Committee responsible

       Date announced in plenary

TRAN

16.2.2006

Committee(s) asked for opinion(s)

       Date announced in plenary

ENVI

16.2.2006

 

 

 

Not delivering opinions

       Date of decision

ENVI

21.2.2006

 

 

 

Rapporteur(s)

       Date appointed

Jaromír Kohlíček

21.3.2006

 

 

Discussed in committee

19.4.2006

10.10.2006

22.11.2006

27.2.2007

Date adopted

27.2.2007

 

 

 

Result of final vote

+:

–:

0:

43

0

1

Members present for the final vote

Gabriele Albertini, Inés Ayala Sender, Etelka Barsi-Pataky, Paolo Costa, Michael Cramer, Luis de Grandes Pascual, Arūnas Degutis, Christine De Veyrac, Petr Duchoň, Saïd El Khadraoui, Robert Evans, Emanuel Jardim Fernandes, Mathieu Grosch, Georg Jarzembowski, Stanisław Jałowiecki, Timothy Kirkhope, Dieter-Lebrecht Koch, Jaromír Kohlíček, Rodi Kratsa-Tsagaropoulou, Sepp Kusstatscher, Jörg Leichtfried, Bogusław Liberadzki, Eva Lichtenberger, Erik Meijer, Seán Ó Neachtain, Josu Ortuondo Larrea, Willi Piecyk, Luís Queiró, Luca Romagnoli, Gilles Savary, Brian Simpson, Renate Sommer, Dirk Sterckx, Ulrich Stockmann, Silvia-Adriana Ţicău, Georgios Toussas, Lars Wohlin, Roberts Zīle

Substitute(s) present for the final vote

Johannes Blokland, Philip Bradbourn, Jeanine Hennis-Plasschaert, Anne E. Jensen, Rosa Miguélez Ramos, Corien Wortmann-Kool

Last updated: 12 April 2007Legal notice