REPORT on the proposal for a directive of the European Parliament and of the Council on compliance with flag State requirements

6.3.2007 - (COM(2005)0586 – C6‑0062/2006 – 2005/0236(COD)) - ***I

Committee on Transport and Tourism
Rapporteur: Marta Vincenzi

DRAFT EUROPEAN PARLIAMENT LEGISLATIVE RESOLUTION

on the proposal for a directive of the European Parliament and of the Council on compliance with flag State requirements

(COM(2005)0586 – C6‑0062/2006 – 2005/0236(COD))

(Codecision procedure: first reading)

The European Parliament,

–   having regard to the Commission proposal to the European Parliament and the Council (COM(2005)0586)[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 (C6‑0062/2006),

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

–   having regard to the report of the Committee on Transport and Tourism (A6‑0058/2007),

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 1
(1) The safety of Community shipping and of citizens using it and the protection of the environment should be ensured at all times.	(1) The safety of Community shipping and of citizens using it, and of operators providing shipping services, and the protection of the environment should be ensured at all times.
Justification
The concept of maritime safety should be spelt out and broadened, and the scope of protection extended to encompass a wider range of persons.
Amendment 2 Recital 4
(4) Due account has to be taken of the ongoing major consolidation by the International Labour Organization (ILO) of the existing body of the maritime labour instruments into a single instrument. That work will also address flag State related obligations, which in a later stage, should be embodied in this Directive.	(4) All European Union Member State representatives in the International Labour Organization (ILO) supported the adoption of the ILO Maritime Labour Convention (MLC), 2006, which consolidates the exisisting body of maritime labour instruments into a single instrument. That Convention also addresses flag State- related obligations and should be incorporated in this Directive once it has entered into force.
Justification
Given that the Convention has been adopted, the reference to it should be more explicit.
Amendment 3 Recital 11
(11) The IMO Conventions give flag States the right to exempt ships from the application of basic flag State rules laid down in the IMO Conventions and to apply equivalent provisions and have left an important number of requirements to the discretion of the administrations. Leaving this possibility to the sole and entire discretion of the individual administration could result in different levels of safety being achieved in different Member States and might possibly distort competition between flag States.	(11) The IMO Conventions give flag States the right to exempt ships from the application of basic flag State rules laid down in the IMO Conventions and to apply equivalent provisions and have left a great many requirements to the discretion of the administrations. Without prejudice to the fact that specific measures need to be implemented with a degree of flexibility, leaving this possibility to the sole and entire discretion of the individual administration could result in different levels of safety being achieved in different Member States and might possibly distort competition between flag States.
Justification
The measure of discretion already afforded to administrations by the IMO provisions is necessary in order to enable flag State requirements to be enforced in line with national situations, which differ in terms of the ‘quality’ and ‘quantity’ of fleets: the ‘Community interpretation’ of permitted exemptions from the general rules is intended not to deprive the system of its flexibility, but rather to maintain uniformly high quality and safety standards.
Amendment 4 Recital 12
(12) The Community has committed itself to initiate harmonised interpretations of technical safety standards with regard to passenger ships engaged on international voyages in Article 12 of Council Directive 98/18/EC of 17 March 1998 on safety rules and standards for passenger ships. The same approach should be followed, if necessary and without prejudice to the adoption of harmonised interpretations by the IMO, with regard to similar provisions related to other types of ships to which the IMO Conventions apply.	(12) The Community has committed itself to initiating harmonised interpretations of technical safety standards with regard to passenger ships engaged on international voyages in Article 12 of Council Directive 98/18/EC of 17 March 1998 on safety rules and standards for passenger ships. The same approach should be followed, if necessary, adopting appropriate solutions on a case-by-case basis and acting at the request of the parties concerned, and without prejudice to the adoption of harmonised interpretations by the IMO, with regard to similar provisions related to other types of ships to which the IMO Conventions apply.
Justification
The measure of discretion already afforded to administrations by the IMO provisions is necessary in order to enable flag State requirements to be enforced in line with national situations, which differ in terms of the ‘quality’ and ‘quantity’ of fleets: the ‘Community interpretation’ of permitted exemptions from the general rules is not intended to deprive the system of its flexibility, but rather will be given on a case-by-case basis and subject to a request from the parties concerned (administrations and operators).
Amendment 5 Recital 28
(28) The establishment of a Flag State Memorandum of understanding to establish flag State synergies should be promoted by the Commission.	(28) The establishment of a Flag State Memorandum of understanding, under the conditions referred to in IMO Resolutions A.973(24) and A.974(24), to establish flag State synergies should be promoted by the Commission, and should provide incentives to register vessels in the registers of Member States. If third countries were allowed, subject to guarantees regarding the necessary quality and survey systems, to conclude agreements with the European Community enabling them to benefit from the good reputation of Community standards and from simpler administrative formalities, this could help, at a time when national registers and maritime administrations are engaged in global competition, to raise the overall degree of compliance with the IMO Conventions and eliminate international dumping.
Justification
The attractiveness of Community flags and the possibility for third countries, if they could guarantee that they had quality systems matching IMO requirements, to conclude agreements with the EU enabling them to capitalise on the commercial prestige of EU registers and to enjoy practical advantages as regards inspections would raise the overall degree of compliance with the conventions and help to eliminate international dumping (low requirements, low standard of inspections, low costs).
Amendment 6 Article 1, paragraph 1, point (a)
(a) to ensure that Member States effectively and consistently discharge their obligations as flag States in accordance with the IMO Conventions;	(a) to ensure that Member States effectively and consistently discharge their obligations as flag States in accordance with the IMO Conventions and the relevant ILO instruments;
Justification
Actual compliance with the international standards governing working conditions provides an additional guarantee of maritime safety; in some cases, flag State-related obligations derive from ILO conventions.
Amendment 7 Article 1, paragraph 1, point (b)
(b) to enhance safety and prevent pollution from ships flying the flag of a Member State and engaged in international trade;	(b) to enhance safety and prevent pollution from ships flying the flag of a Member State;
Justification
The scope of the term ‘ships’ is already defined in Article 2, paragraph 1(d) of the Directive.
Amendment 8 Article 2, paragraph 1, point (a), point (vi a) (new)
	(via) the Code of Safe Practice for Ships Carrying Timber Deck Cargoes;
Justification
The Code of Safe Practice for Ships Carrying Timber Deck Cargoes should be incorporated in all the directives in the third maritime safety package because (a) timber deck cargoes are prone to shift in rough seas and (b) in winter, especially in high latitudes, they are likely to freeze over.
Amendment 9 Article 2, paragraph 1, point (a), point (vi b) (new)
	(vib) the Code of Safe Practice for Solid Bulk Cargoes;
Justification
The Code of Safe Practice for Solid Bulk Cargoes should likewise be incorporated, since bulk carriers have proved to be one of the most dangerous types of vessels. The safe and proper handling of bulk cargoes, including stowage and flattening, and the procedure for lading holds while unlading ballast, without subjecting ships to needless stress, are all important points for ship safety.
Amendment 10 Article 2, paragraph 1, point (f)
(f) “qualified flag State surveyor” means a public-sector employee or other person duly authorised by the competent authority of a Member State to carry out surveys and inspections related to the certificates and fulfilling the criteria of qualification and independence specified in Annex II;	(Does not affect English version.)
Justification
(Does not affect English version.)
Amendment 11 Article 3, paragraph 4
4. In respect of international shipping Member States shall apply in full the mandatory flag State related provisions laid down in the IMO Conventions in accordance with the conditions and in respect of the ships referred to therein and shall take due account of the provisions of the Flag State Code (FSC) in Annex I to this Directive.	4. In particular, in respect of international shipping Member States shall apply in full the mandatory flag State-related provisions laid down in the IMO Conventions in accordance with the conditions and in respect of the ships referred to therein and shall take due account of the provisions of the Flag State Code (FSC) in Annex I to this Directive.
Justification
Purely to stress that this provision is a logical consequence of the text which precedes it.
Amendment 12 Article 3, paragraph 6
6. In accordance with the procedure referred to in Article 18(2) measures may be adopted in order to:	6. In accordance with the procedure referred to in Article 18(2), either at the initiative of the Commission or at the request of one or more of the administrations or operators concerned, measures may be adopted in order to:
(a) develop harmonised procedures for the application of exemptions and equivalents applied in accordance with the IMO Conventions;	(a) develop harmonised procedures for the application of exemptions and equivalents applied in accordance with the IMO Conventions;
(b) establish harmonised interpretations of issues left to the discretion of the Administrations in the IMO Conventions;	(b) establish harmonised interpretations of issues left to the discretion of the Administrations in the IMO Conventions;
(c) apply unified interpretations for provisions laid down in the Conventions.	(c) standardise the interpretation and application of provisions laid down in the Conventions.
Amendment 13 Article 4, paragraph 1, point (a)
(a) ensure compliance with the requirements of the IMO Conventions;	(a) ensure compliance with the requirements of the IMO Conventions and specific conventions, the Flag State Code and the relevant ILO instruments;
Amendment 14 Article 4, paragraph 1, point (b)
(b) ensure the conduct of investigations into casualties and adequate and timely handling of cases of ships with identified deficiencies; and	(b) ensure the conduct of investigations into casualties for all ships under its flag and ensure that adequate and timely measures are taken to remedy identified deficiencies;
Amendment 15 Article 4, paragraph 1, point (c)
(c) ensure the development, documentation and provision of guidance concerning those requirements that are to the satisfaction of the Administration, found in the relevant IMO Conventions;	(c) ensure the development, documentation and provision of guidance concerning those requirements that are to the satisfaction of the States as contracting parties, found in the relevant IMO Conventions;
Amendment 16 Article 4, paragraph 1, point (d)
(d) comprise an appropriate number of qualified personnel to implement and enforce the national legislation implementing the IMO Conventions, including personnel for performing investigations and surveys;	(d) comprise an appropriate number of qualified personnel to implement and enforce the national legislation implementing the IMO Conventions, including qualified flag State surveyors to carry out investigations, audits, inspections and surveys;
Justification
See amendment to Article 2(1)(f).
Amendment 17 Article 4, paragraph 2
2. Each Member State shall ensure the training and oversight of the activities of flag State surveyors and investigators.	2. Each Member State shall ensure the training of flag State surveyors and the oversight of flag State surveyors and investigators and, in the event of accidents or deficiencies, the coastal State, as well as of the activities of recognised organisations, should it delegate authority to such organisations pursuant to Article 7.
Justification
The meaning of this provision should be clarified and the wording made less clumsy.
Amendment 18 Article 4, paragraph 3
3. Each Member State shall develop or maintain a design review and technical decision-making capability commensurate with the size and nature of its fleet.	3. Each Member State shall develop or maintain a capability for reviewing, approving and authorising ship construction and equipment designs, and a technical decision-making capability commensurate with the size and nature of its fleet.
Amendment 19 Article 5, paragraph 2
2. When registering a ship in its register for the first time the Member State concerned shall endeavour to ensure that the ship in question complies with the applicable international rules and regulations. It shall liaise with the previous flag State, if necessary.	2. As a precondition for registration of a ship in its register for the first time the Member State concerned shall ascertain whether the ship in question complies with the applicable international rules and regulations and ensure that this is confirmed by documentary evidence in its possession. If necessary, but in every case if the ship is not newly built, it shall liaise with the previous flag State and request it to pass on the necessary documents and data.
Amendment 20 Article 5, paragraph 2 a (new)
	2a. If the request is made by a Member State to another Member State, the previous flag State shall be obliged to communicate the documents and the data in question, as provided for by Regulation (EC) No 789/2004 of the European Parliament and of the Council on the transfer of cargo and passenger ships between registers within the Community1.___________ 1 OJ L 138, 30.4.2004, p. 19.
Amendment 21 Article 6, paragraph 1, point (c)
(c) ensuring that, during the periodic inspection referred to in point (b), the surveyor checks that seafarers assigned to the ships are familiar with their specific duties and ship arrangements, installations, equipments and procedures;	(c) ensuring that, during the periodic inspection referred to in point (b), the surveyor checks, by the appropriate methods and the necessary means, that seafarers assigned to the ships are familiar with their specific duties and ship arrangements, installations, equipment and procedures;
Justification
It should be made clear that methods and means need to be adaptable to every purpose so as to enable surveyors to do their job.
Amendment 22 Article 6, paragraph 1, point (d)
(d) ensuring that the ship’s complement, as a whole, can effectively co-ordinate their activities in an emergency situation and in performing functions vital to safety or to the prevention or mitigation of pollution;	(d) ensuring that the ship’s complement, as a whole, has the capability and resources necessary effectively to co-ordinate their activities in an emergency situation and in performing functions vital to safety or to the prevention or mitigation of pollution;
Amendment 23 Article 6, paragraph 2
2. Member States shall develop and implement an appropriate control and monitoring programme to provide for a timely response to deficiencies and alleged pollution incidents reported by port or coastal States.	2. As laid down in Directive 2002/59/EC of the European Parliament and of the Council of 27 June 2002 establishing a Community vessel traffic monitoring and information system1, Member States shall develop and implement an appropriate control and monitoring programme for ships flying their flag in order to be able to provide, not least by using the Community SafeSeaNet data exchange system, for a timely and comprehensive response to requests for information and clarification submitted by port or coastal States in the event of accidents or deficiencies. 1 OJ L 208, 5.8.2002, p. 10.
Justification
Member States should be put in a position to handle, and made responsible for, data exchange to help prevent and resolve accidents and deficiencies: the above provision refers to, and expands, the measures already in force.
Amendment 24 Article 7, paragraph 1, subparagraph 1
1. Without prejudice to [Directive 94/57/EC or Directive …/…/EC (on common rules and standards for ship inspection and survey organisations and for the relevant activities of maritime administrations)], Member States relying upon recognised organisations for the certification of their ships shall develop or maintain a capability, commensurate with the size and nature of their fleet, to continuously monitor the survey and certification process of the recognised organisations acting on their behalf.	1. Without prejudice to [Directive 94/57/EC or Directive …/…/EC (on common rules and standards for ship inspection and survey organisations and for the relevant activities of maritime administrations)], Member States relying upon recognised organisations for the inspection and certification of their ships shall develop or maintain a capability, commensurate with the size and nature of their fleet, to continuously monitor and oversee the survey and certification process of the recognised organisations acting on their behalf.
Justification
More exact description of the tasks which national administrations can delegate to recognised organisations and of Member States’ responsibilities for proper performance of the duties assigned.
Amendment 25 Article 7, paragraph 2
2. Member States to whom paragraph 1 applies shall ensure that each ship flying their flag is subject to a supplementary survey at intervals not exceeding 12 months, in order to ensure that it complies with the IMO Conventions and national requirements.	2. Member States to which paragraph 1 applies shall provide for the possiblity of conducting supplementary investigations concerning ships flying their flag in order to ensure that they comply with the IMO Conventions and national requirements.
Justification
Although it is necessary for enforcement of the directive and already provided for in the IMO Code, the power/duty that Member States have to supervise their appropriate administrations and delegated bodies should not invariably imply that, come what may, every ship will be surveyed. For the practical reason of avoiding overlapping in the checks and by virtue of the principle that Member States should be assumed to be complying (trust), it is sufficient to stipulate that investigations may be carried out by procedures and methods to be laid down under paragraph 6 (comitology).
Amendment 26 Article 7, paragraph 3
3. The supplementary survey referred to in paragraph 2 shall not be required for ships which:	3. The supplementary investigations referred to in paragraph 2 shall be required at intervals not exceeding 12 months for ships which:
(a) have been in the Member State's register for at least two years;	(a) have been in the Member State's register for less than two years; and
(b) have been inspected at least once in the previous 12 months in accordance with Directive 95/21/EC1 or [Directive …/…/EC of the European Parliament and of the Council (on port State control)]; and	(b) have been detained pursuant to Directive 95/21/EC or to [Directive…/…/EC (on port State control)] at some point in the last 12 months.
(c) have not been detained pursuant to Directive 95/21/EC or to [Directive…/…/EC (on port State control)] in the last 12 months.
Justification
The proposal puts a heavier burden on MS's shoulders in terms of inspections of ships and surveyors. No further obligations should be laid down, other than to impose correct enforcement of the existing rules and avert laxness on the part of national administrations: supplementary investigations are only necessary in cases where there is a real risk of circumvention and/or accident. Detention (former case sub c) implies always inspection (former case sub b). The requirements referred to in (new) letters a) and b) are cumulative ones and not alternative ones.
Amendment 27 Article 7, paragraph 4
4. Once detailed rules of inspection adopted under Article 5(2) of [Directive …/…/EC on Port State Control] have entered into force, the supplementary survey referred to in paragraph 2 shall not be required for ships to which a low risk profile has been assigned under that Directive at its the most recent inspection.	4. Once detailed rules of inspection adopted under Article 5(2) of [Directive …/…/EC (on port State control)] have entered into force, the supplementary investigations referred to in paragraphs 2 and 3 shall not be necessary in any event for ships to which a low risk profile has been assigned under that Directive at the most recent inspection.
Justification
Adjustment to allow for the amended supplementary investigation arrangements set out in Article 7(2) and (3). This builds on the overall philosophy of the third package whereby upstream oversight (by flag States) is to be increased so as to reduce downstream oversight (by port States) in order to improve safety and achieve economies of scale.
Amendment 28 Article 7, paragraph 6
6. Procedures and guidelines for supplementary surveys and minimum criteria for surveyors and inspectors performing supplementary surveys shall be established in accordance with the procedure referred to in Article 18(2).	6. Guidelines necessary to establish inspection procedures and systems of oversight for supplementary investigations and minimum criteria for surveyors and inspectors performing supplementary investigations shall be established in accordance with the procedure referred to in Article 18(2).
Justification
Adjustment to allow for the supplementary investigation arrangements set out in Article 7(2) and (3). The committee referred to in Article 18 should at all events merely specify the guidelines for the Member States’ supplementary investigations, as Article 2(4) already lays down the end (but nothing more) that oversight has to achieve (ascertaining compliance with conventions and national requirements).
Amendment 29 Article 8, paragraph 4
4. Member States shall ensure the implementation of a documented system for qualification of personnel and continuous updating of their knowledge as appropriate to the tasks they are authorised to undertake.	4. Member States shall ensure, by the appropriate methods and the necessary means, the implementation of a documented system for ongoing skills development for the personnel referred to in paragraphs 1 to 3 and continuous updating of their knowledge as appropriate to the tasks they are appointed or authorised to undertake.
Amendment 30 Article 8, paragraph 5
5. The flag State shall issue an identification document to all surveyors carrying out tasks on its behalf on board ships.	5. The flag State shall issue identification documents attesting to the authority it has conferred on them to surveyors carrying out tasks on its behalf on board or in the hold of ships, and, if necessary, to the other personnel referred to in paragraph 3.
Amendment 31 Article 8, paragraph 5 a (new)
	5a. To improve the guidelines in the light of experience acquired in implementing the provisions in force, Annex II may be amended by the procedure referred to in Article 18(2).
Justification
A review arrangement and an opportunity for improvement should likewise be provided for where surveyor training and skills development are concerned.
Amendment 32 Article 9
Without prejudice to responsibilities under the Code for the Investigation of Marine Casualties and Incidents, adopted by the IMO by resolution A. 849(20), as annexed to IMO Assembly Resolution A. 884(21), in its up-to-date version, Member States shall carry out an investigation following a marine casualty or pollution incident involving a ship flying their flag. Such casualty investigations shall be conducted by suitably qualified investigators, competent in matters relating to the casualty. For this purpose Member States shall provide qualified investigators, irrespective of the location of the casualty or incident.	Member States shall carry out an investigation following a marine casualty or pollution incident involving a ship flying their flag, observing responsibilities and obligations under the Code for the Investigation of Marine Casualties and Incidents, adopted by the IMO by resolution A. 849(20), as annexed to IMO Assembly Resolution A. 884(21), in its up-to-date version. Such casualty investigations shall be conducted by suitably qualified investigators, competent in matters relating to the casualty, who shall be provided by the Member States, irrespective of the location of the casualty or incident.
Justification
Makes the provision more explicit as regards form and substance so as to clarify the obligations incumbent on Member States.
Amendment 33 Article 11, paragraph 1
1. Member States shall develop or maintain a fleet database for their ships, with the main technical details of each ship and the information listed in paragraph 2, or ensure that they have direct access to a database providing similar information. Member States shall grant the Commission the right to extract data from their databases and to exchange data with them.	1. Member States shall develop or maintain a fleet database for their ships, with the main technical details of each ship and the information listed in paragraph 2, or ensure that they have direct access to a database providing similar information. Member States shall grant the Commission the right to enjoy or share access, as necessary, to their ship database, while having the possibility of extracting and exchanging data with them.
Amendment 34 Article 11, paragraph 2 points (a) and (b)
2. The following information shall be included in the database:	2. The following information shall be included in the database of each Member State:
	(a) individual information, for each ship registered:
(a) particulars of the ship (Name, IMO number, etc.);	(i) particulars of the ship (Name, IMO number, etc.); date of registration and, if appropriate, of removal from the register,
(b) dates of the surveys, including additional and supplementary surveys, if any, and audits;	(ii) identification of the recognised organisations involved in the certification and classification of the ship,
(c) identification of the recognised organisations involved in the certification and classification of the ship;	(iii) dates and outcome (Deficiencies: No or Yes, description, repairs performed or pending; Detentions: No or Yes, and duration) of the surveys, including additional and supplementary surveys, if any, and audits performed either directly by the flag State or by recognised organisations to which that State has delegated authority,
(d) identification of the body which has inspected the ship under Port State control provisions and dates of the inspections;	(iv) identification of the body which has inspected the ship under Port State control provisions and dates of the inspections,
(e) outcome of the port State control inspections (Deficiencies: Yes or No, detentions Yes or No);	(v) outcome of the port State control inspections (Deficiencies: No or Yes, description, repairs performed or pending; Detentions: No or Yes, and duration),
(f) information on casualties;	(vi) information on casualties,
(g) information on infringements under MARPOL and under Directive 2005/35/EC of the European Parliament and of the Council of 7 September 2005 on ship-source pollution and on the introduction of penalties for infringements;	(vii) information on infringements under IMO Conventions, in particular MARPOL and under Directive 2005/35/EC of the European Parliament and of the Council of 7 September 2005 on ship-source pollution and on the introduction of penalties for infringements,
	(b) General information concerning all ships in its register:
(h) identification of the ships which have left the register during the previous 12 months.	(i) record and identification of the ships which have left the register during the previous 12 months; during this period all information collected in the database over the period in which they remained in the register must be maintained,
	(ii) number of annual inspections of all types carried out by or on behalf of the flag State, broken down by procedure.
Amendment 35 Article 11, paragraph 2, point (c)
(c) identification of the recognised organisations involved in the certification and classification of the ship;	(c) identification of the recognised organisations involved in the certification and classification of the ship on the instructions of the flag State;
Justification
Additional detail to complete and clarify the sense of the provision.
Amendment 36 Article 11, paragraph 3 a (new)
	3a. The information referred to in paragraph 2 shall be immediately forwarded in full to the new flag State if a ship leaves the register and is transferred to another register.
Amendment 37 Article 13, paragraph 5
5. If necessary, the Community shall develop recommendations for measures and proposals improving the effectiveness of the IMO auditing system referred to in paragraph 2.	5. If necessary, the Commission, in cooperation with the Member States, shall develop recommendations and make proposals to improve the procedures and outcomes of the IMO auditing system in the case referred to in paragraph 2.
Justification
It would be advisable to proceed from the premise that the IMO auditing system is already effective, but not yet coordinated with EU procedures: otherwise Resolution A. 974, as referred to in paragraph 13(2), could not be invoked, because the case would not arise.
Amendment 38 Article 15
The Commission shall, before the end of [2007], submit to the European Parliament and the Council a report on the feasibility of establishing a Memorandum of Understanding on flag State control obligations, aiming at ensuring a level playing field between flag States, which have committed themselves to implement in a mandatory way the Code for the implementation of mandatory IMO instruments, adopted by the International Maritime Organisation (IMO) through Assembly Resolution A. 973 (24) of 1 December 2005, and agreed to be audited in accordance with the provisions of Resolution A. 974 (24) adopted by the IMO Assembly on 1 December 2005.	The Commission shall, before the end of [2007], submit to the European Parliament and the Council a report on the feasibility of establishing a Memorandum of Understanding between the European Community, Member States and third countries, on flag State control obligations, aiming at ensuring equal competitive conditions as with Member States for those third countries, which have committed themselves to implement in a mandatory way the Code for the implementation of mandatory IMO instruments, adopted by the International Maritime Organisation (IMO) through Assembly Resolution A. 973 (24) of 1 December 2005, and agreed to be audited in accordance with the provisions of Resolution A. 974 (24) adopted by the IMO Assembly on 1 December 2005.
Amendment 39 Article 16, title
Communication of information and reporting	Sending of information and notices
Justification
More accurate title to clarify and complement the amendment to the provision.
Amendment 40 Article 16, paragraph 1
1. Each Member State shall communicate to the IMO the information required by the provisions of the IMO Conventions.	1. Each Member State shall communicate to the IMO and the Commission the information required by the provisions of the IMO Conventions.
Amendment 41 Article 16, paragraph 3
3. A harmonised specimen form for the reporting obligations referred to in paragraph 2 may be established in accordance with the procedure referred to in Article 18(2).	3. A harmonised specimen form for the information obligations referred to in paragraph 2 may be established in accordance with the procedure referred to in Article 18(2).
Justification
The proposal for a directive already requires administrations to shoulder a heavier burden, and that includes checking on outcomes and performance evaluation. It would not be appropriate at this stage to impose yet more obligations on the Member States, since this might lead to futile disagreements. Passing on information should be understood as an easier way of ensuring compliance than submitting the reports originally provided for in paragraph 2, which has also been amended.
Amendment 42 Article 16, paragraph 4
4. The Commission shall, after having received reports from Member States, prepare a consolidated report concerning the implementation of this Directive. This report shall be addressed to the European Parliament and the Council.	4. The Commission shall, after having received notices from Member States, prepare a consolidated report concerning the implementation of this Directive. This report shall be addressed to the European Parliament and the Council.
Justification
The proposal for a directive already requires administrations to shoulder a heavier burden, and that includes checking on outcomes and performance evaluation. It would not be appropriate at this stage to impose yet more obligations on the Member States, since this might lead to futile disagreements. Passing on information should be understood as an easier way of ensuring compliance than submitting the reports originally provided for in paragraph 2, which has also been amended.
Amendment 43 Annex II, paragraph 3, point 2
(2) passed an examination recognised by the competent Authority as a naval architect, mechanical engineer or an engineer related to the maritime fields and worked in that capacity for at least five years; or	(2) passed an examination recognised by the competent Authority as a naval architect, mechanical engineer or an engineer related to the maritime fields and worked in that capacity for at least three years; or for a period of one year and also served a period of two years with the competent authority of a Member State as a practising Flag State surveyor.
Amendment 44 Annex II, paragraph 4
4. Surveyors qualified under 3(1) must have served for a period of not less than five years at sea as an officer in the deck or engine department, respectively.	deleted
Amendment 45 Annex II, paragraph 8
8. Surveyors must not have a commercial interest in the ship surveyed and must not be employed by or undertake work on behalf of non-governmental organisations which carry out statutory or classification surveys or issue certificates for ships.	8. Surveyors must not have a commercial, personal or family interest of any kind in the ship surveyed, its crew, agent, company, owner or charterer, or in any non-governmental organisations which carry out statutory or classification surveys or issue certificates for ships.
Amendment 46 Annex II, point 9
9. Surveyors not fulfilling the above criteria are also accepted if they were employed by a competent authority for statutory surveys or port state control inspections at the date of adoption of this Directive.	9. Surveyors not fulfilling the above criteria are also accepted if they were employed by a competent authority for statutory surveys or port State control inspections at the date of adoption of this Directive and the port State concerned has acceded to the Paris Memorandum of Understanding on Port State Control.
Justification
It would be useful to mention the Paris Memorandum of Understanding because this would ensure in any event that surveyors satisfied requirements of a uniformly high standard.
Amendment 47 Annex III, paragraph 1, point 1
1. When the competent authority of a Member State (hereinafter called the flag State) is informed that a ship flying its flag has been detained by a port State it should oversee the appropriate corrective measures to bring the ship into compliance with the applicable regulations and international conventions. Such measures should include the following.	1. When the competent authority of a Member State (hereinafter called the flag State) is informed that a ship flying its flag has been detained by another port State it should oversee the appropriate corrective measures to bring the ship into compliance with the applicable regulations and international conventions. The measures listed below are deemed to be appropriate; the list does not prevent the adoption of equivalent or additional measures, so long as they are consistent with the aims of, and the means of action afforded by, this Directive.
Justification
Detail added to the text to clarify and complete the sense of the provision.
Amendment 48 Annex III, paragraph 2, point 3
3. For more serious deficiencies, particularly structural ones and others covered by certificates issued on the flag State’s behalf by a recognised organisation (RO), the flag State should require an inspection by one of its surveyors or appoint a surveyor from the RO to carry one out on its behalf. Initially this inspection should focus on those areas where deficiencies have been recorded by the port State. If deemed necessary by the flag State or RO surveyor it may then be extended to a full re‑survey for those areas covered by the relevant statutory certificates.	3. For more serious deficiencies, particularly structural ones and others covered by certificates issued by the flag State or by a recognised organisation (RO), the flag State should require a special supplementary inspection by one of its surveyors or appoint a surveyor from the RO to carry one out on its behalf. Initially this inspection should focus on those areas where deficiencies have been recorded by the port State. If deemed necessary by the flag State or RO surveyor it may then be extended to a full re‑survey for those areas covered by the relevant statutory certificates.
Amendment 49 Annex III, paragraph 3, point 5
5. In all cases the flag State should consider what legal action, including fines, against the company may be appropriate. In the case of a ship which persistently fails to comply with the requirements of the applicable regulations and international conventions the flag State should consider what additional sanctions may be necessary including the deletion of the ship from its registry.	5. In all cases the flag State should consider what legal action might be taken against the company, including fines of sufficient severity to discourage infringement of Community standards and international rules. In the case of a ship which persistently fails to comply with the requirements of Community regulations and the international conventions the flag State should consider what additional sanctions may be necessary, including the deletion of the ship from its registry.
Justification
Details added to the text to clarify and complete the sense of the provision.
Amendment 50 Annex III, paragraph 3, point 6
6. When all corrective measures to bring the ship into compliance with the applicable regulations and international conventions have been completed the flag State should send a report to IMO in accordance with SOLAS 74 as amended, Chapter I, Regulation 19(d) and paragraph 5.2 of IMO Resolution A. 787 (19) as amended.	6. When all corrective measures to bring the ship into compliance with the international conventions and the Community regulations have been completed the flag State should send to IMO and to the Commission a report, drawn up in accordance with SOLAS 74 as amended, Chapter I, Regulation 19(d) and paragraph 5.2 of IMO Resolution A. 787 (19) as amended, with regard to IMO, and containing additional information relating to Community related provisions, with regard to Commission.
Amendment 51 Annex III, paragraph 4, point 2
2. It should also include, but not be limited to, the relevant items for an expanded inspection specified in [Part C of Annex V to Council Directive 95/21/EC or Part C of Annex VIII to Directive …/…/EC (on port State control)]. Flag State surveyors should not refrain from including, where deemed necessary, functional tests of items such as survival craft and their launching arrangements, main and auxiliary machinery, hatch covers, main electrical power and bilge systems.	2. It should also include, but not be limited to, the relevant items for an expanded inspection specified in [Annex V to Council Directive 95/21/EC or Part C of Annex VIII to Directive …/…/EC (on port State control)]. Flag State surveyors should not refrain from including, where deemed necessary, functional tests of items such as survival craft and their launching arrangements, main and auxiliary machinery, hatch covers, main electrical power and bilge systems.

• [1]  OJ C 70, 22.3.2006, p. 6.

EXPLANATORY STATEMENT

1. Introduction

The EU has already adopted the rules laid down in the ‘Erika I’ and ‘Erika II’ packages with a view to improving maritime security and safety: among other things, surveys of ships in port have been intensified, single-hull vessels may no longer be used to transport oil, and the European Maritime Safety Agency (EMSA) has been established. Parliament played its part in the debate by setting up a Temporary Committee on Improving Safety at Sea (known as the MARE Committee), which between November 2003 and April 2004 held a series of meetings and hearings with political leaders and technical operators (cf. report A5-0257/2004).

Parliament’s activity found further expression in the April 2004 resolution on improving safety at sea, which set out the conclusions of the MARE Committee and prefigured the proposals in the ‘Erika III’ package; the resolution called for the EU to assume responsibility for a comprehensive policy on maritime matters and safety, for the (preferably compulsory) international auditing system to be strengthened, for the performance of the maritime administrations to be improved, and for registration under Community flags to be encouraged (cf. resolution P5_TA(2004)0350).

2. Summary of the proposal

2.1. Draft directive on flag States

In November 2005 the Commission adopted a new set of legislative proposals (the ‘Erika III' package), including a draft directive on flag State requirements aimed at making Member States ensure that ships in their national registers conform to international standards. The Commission intends to (a) incorporate parts 1 and 2 of the ‘Flag State Code’ into Community law, that is to say, the measures for implementing the mandatory instruments adopted by the International Maritime Organisation (IMO); (b) lay down the requisite minimum qualifications for surveyors (also covering basic and further training) and guidelines for inspections (when a national ship is detained in a foreign port); and (c) ensure that the maritime administrations of the Member States meet the quality criteria defined in the ISO 9001/2000 standard.

2.2. Legal context

The obligation to comply with the rules laid down in the international maritime safety conventions is already provided for in Article 3 of Directive 94/57/EC (consolidated text), which requires Member States to implement IMO resolution A 847(20) on Guidelines to assist flag States. That resolution has been revoked and replaced by resolution A 973(24) entitled ‘Code for the implementation of mandatory IMO instruments’: the Commission intends to take over the provisions of the IMO code as reproduced in the text of Annex I and as they stood at the time when the proposal was drawn up (Community legislation cannot alter the system of rules established by the conventions).

2.3. The Commission’s intentions

In the short term, the Commission wishes to remedy supposed weaknesses in the IMO rules, in other words the non-binding nature of IMO measures, and hence the fact that their non-enforcement is not punishable at international level, and the discretion accorded when interpreting exemptions from IMO rules: these shortcomings are apparently to be overcome by means of ‘comitology’ procedures. In the medium and long term, the Commission is seeking to turn the Member States’ fleets into a high-quality fleet and make their flags more attractive: the possibility for third countries, if they could guarantee that they had comparable quality systems, to conclude agreements with EU Member States would raise the overall degree of compliance with the conventions.

2.4. Position of the Member States

Some Member States believe that, as a matter of principle, the Community is not competent to act; many of them, in any case, deplore what they see as a violation of the subsidiarity principle (effectiveness of national systems) and the proportionality criterion (plethora of instruments laid down). As regards the specifics, many Member States are predicting that compliance with the standards underlying flag State requirements will generate additional costs, whether direct (qualified surveyors, implementation of administrative systems, qualified auditing personnel) or indirect (delegation of survey-related and certification responsibilities to classification societies), posing a risk that Community practices might ‘overlap’ with international obligations.

3. Opinion of the rapporteur

3.1. Subjects for discussion

The failure of some Member States to comply with the international instruments creates problems (a) of an economic nature, given that the discrepancies between greater oversight of ships flying the flag and a lack of rigour at the time of registration make themselves felt in terms of the costs incidental to ships and the expenditure incurred by administrations; (b) in the social sphere, since failure to comply with international obligations has a bearing on the employment of cheaper, less skilled crews, leading to social dumping that does skilled personnel out of jobs; and (c) as regards environmental protection, since the use of ships not conforming to the international conventions, manned by crews without the necessary qualifications, increases the risk of marine incidents, losses of human lives, and damage to the ecosystem.

3.2. Competence problems

The putative limit to EU legislative competence seems legally unsound and politically unwise. On the one hand, as far as shipping is concerned, the EC Treaty itself not only assigns abstract competence, but also enables a preserve to be established through the exercise of legislative power (Article 80(2) TEC). Secondly, in the era of ‘global transport’, it makes little sense to treat the seas as a national matter, thus preventing the European legislature from coordinating efforts to develop and improve maritime safety. Furthermore, as has been mentioned above, the EU has already legislated, explicitly invoking international rules.

As regards the subsidiarity principle and the proportionality criterion (Article 5 TEC, second and third paragraphs), it can no doubt be said that (a) given the repeated incidents in Community waters (Erika, Prestige, Braer, Herald of Free Enterprise, Torrey Canyon), protection at national level cannot be considered adequate or effective; (b) bearing in mind that infringements of the IMO conventions are not punishable, a real improvement in enforcement could be achieved by ‘Communitarising’ the international standards. The question should not be ‘if’, but ‘how’ to proceed, following an even-handed approach without cumbersome bureaucracy, in order to manage the change from action under the conventions to Community action.

3.3. Excessive red tape

It needs to be made clear that (a) it is not the Member States which must prove that the standards are being applied, but the Commission which must prove that provisions are being violated (trust); and (b) Member States can fulfil Community obligations by employing the existing conventions to enforce international rules (auditing). Under the proposal for a directive IMO surveys and EC surveys are treated as equivalent procedures, thus apparently simplifying ‘Communitarisation’ of the conventions. On the other hand, the provisions for ‘communication of information’ and ‘performance evaluation’ seem likely to add to the bureaucratic burdens imposed on national administrations: monitoring procedures and documents need to be unified and simplified as far as possible.

3.4. Need for flexibility

As regards the effects of ‘harmonisation’ of the ‘comitology’ arrangements, the measure of administrative discretion already afforded by the IMO provisions is necessary in order to enable flag State requirements to be enforced in line with national situations, which differ in terms of the ‘quality’ and ‘quantity’ of fleets: the ‘Community interpretation would be employed to more useful effect if it were subject to a request from the parties concerned (administrations and/or operators) and given on a case-by-case basis (instead of being valid across the board). It should, however, be pointed out that the committee responsible (COSS) is staffed entirely by representatives of the Member States and merely chaired by the Commission.

3.5. Estimated costs

According to the Commission’s impact assessment, more intensive oversight by flag States will promote economies of scale as far as port State procedures are concerned: this will work wholly to the advantage of ships in a Community register, which will undergo more ‘upstream’ checks (at the time of registration) but fewer ‘downstream’ inspections (when they berth). Similarly, the upgrading of the administrations, which will have to meet ISO standards, and, moreover, are already required to do so under the International Convention for the Safety of Life at Sea (SOLAS) and the International Convention for the Prevention of Pollution from Ships (MARPOL), will increase expenditure temporarily, but enhance efficiency in the future.

PROCEDURE

Title	Compliance with the obligations of Flag States
References	COM(2005)0586 - C6-0062/2006 - 2005/0236(COD)
Committee responsible        Date announced in plenary	TRAN 14.3.2006
Committee(s) asked for opinion(s)        Date announced in plenary	ENVI 14.3.2006
Not delivering opinions        Date of decision	ENVI 21.3.2006
Rapporteur(s)        Date appointed	Marta Vincenzi 6.4.2006
Discussed in committee	19.4.2006		13.9.2006		23.1.2007		27.2.2007
Date adopted	27.2.2007
Result of final vote	+: -: 0:	46 0 1
Members present for the final vote	Gabriele Albertini, Inés Ayala Sender, Etelka Barsi-Pataky, Jean-Louis Bourlanges, 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, Eva Lichtenberger, Erik Meijer, Seán Ó Neachtain, Willi Piecyk, Luís Queiró, Luca Romagnoli, Gilles Savary, Brian Simpson, Renate Sommer, Dirk Sterckx, Ulrich Stockmann, Silvia-Adriana Ţicău, Georgios Toussas, Yannick Vaugrenard, Marta Vincenzi, Lars Wohlin, Corien Wortmann-Kool, Roberts Zīle
Substitute(s) present for the final vote	Zsolt László Becsey, Johannes Blokland, Philip Bradbourn, Roland Gewalt, Jeanine Hennis-Plasschaert, Anne E. Jensen, Rosa Miguélez Ramos