Index 
 Previous 
 Next 
 Full text 
Procedure : 2005/0236(COD)
Document stages in plenary
Document selected : A6-0058/2007

Texts tabled :

A6-0058/2007

Debates :

PV 28/03/2007 - 20
CRE 28/03/2007 - 20

Votes :

PV 29/03/2007 - 8.6
Explanations of votes

Texts adopted :

P6_TA(2007)0093

Texts adopted
PDF 548kWORD 220k
Thursday, 29 March 2007 - Brussels
Compliance with the obligations of flag States ***I
P6_TA(2007)0093A6-0058/2007
Resolution
 Consolidated text

European Parliament legislative resolution of 29 March 2007 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.

(1) Not yet published in OJ.


Position of the European Parliament adopted at first reading on 29 March 2007 with a view to the adoption of Directive 2007/.../EC of the European Parliament and of the Council on compliance with flag State requirements
P6_TC1-COD(2005)0236

(Text with EEA relevance)

THE EUROPEAN PARLIAMENT AND THE COUNCIL OF THE EUROPEAN UNION,

Having regard to the Treaty establishing the European Community, and in particular Article 80(2) thereof,

Having regard to the proposal from the Commission,

Having regard to the opinion of the European Economic and Social Committee(1),

Having regard to the opinion of the Committee of the Regions(2),

Acting in accordance with the procedure laid down in Article 251 of the Treaty(3),

Whereas:

(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.

(2)  In respect of international shipping, a comprehensive framework enhancing maritime safety and the protection of the environment with regard to pollution from ships has been set up through the adoption of a number of conventions for which the International Maritime Organization (IMO) is the depository.

(3)  Under the provisions of the United Nations Convention on the Law of the Sea 1982 (UNCLOS) and of the conventions for which the IMO is the depository, the States which are party to those instruments are responsible for promulgating laws and regulations and for taking all other steps which may be necessary to give those instruments full and complete effect so as to ensure that, from the point of view of the safety of life at sea and the protection of the marine environment, a ship is fit for the service for which it is intended and is manned with competent maritime personnel.

(4)  All Member State representatives in the International Labour Organization (ILO) supported the adoption of the ILO Maritime Labour Convention (MLC), 2006, which consolidates the existing body of maritime labour instruments into a single instrument. That Convention also addresses flag State-related obligations and should be incorporated into this Directive once this Directive has entered into force.

(5)  To ensure the effectiveness of the IMO Conventions in the Community, given that all Member States have to be party to the IMO Conventions and have to discharge the obligations laid down in those conventions with respect to the ships flying their flag, the mandatory provisions of those conventions should be incorporated into Community legislation.

(6)  Those mandatory provisions have to be implemented together with the relevant Community legislation concerning the safety of ships and their crew, passengers and cargo, and the prevention of pollution from ships and seafarers" working time.

(7)  A few Member States have not yet completed the process of becoming a contracting party to some of the IMO Conventions, such as the 1988 SOLAS and Load Line Protocols, MARPOL Annexes IV and VI, or to specific IMO Conventions explicitly quoted in Community legislation, and should be encouraged to finalise this process.

(8)  Under Directive 2007/…/EC of the European Parliament and of the Council of ... on common rules and standards for ship inspection and survey organisations and for the relevant activities of maritime administrations(4), Member States have to act in accordance with the relevant provisions of the Annex and the Appendix to IMO Resolution A.847(20) on guidelines to assist flag States in the implementation of IMO instruments in order to ensure that their competent administrations are able to ensure the appropriate enforcement of the provisions of the international conventions, in particular with regard to the inspection and survey of ships and the issue of statutory certificates and exemption certificates.

(9)  IMO Resolution A.847(20) has been revoked by IMO Resolution A.973(24) on the Code for the implementation of mandatory IMO instruments, which contains the mandatory provisions to be implemented by flag States.

(10)  Member States have to discharge their obligations as flag States effectively and consistently in accordance with the IMO Conventions and taking account of IMO Resolution A.973(24).

(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 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.

(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(5). 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.

(13)  The maritime administrations of the Member States should be able to rely on appropriate resources for the implementation of their flag State obligations, which are commensurate with the size and nature of their fleet and based upon the relevant IMO requirements.

(14)  Minimum criteria related to those resources should be established on the basis of the practical experience of Member States.

(15)  Mandatory implementation of the procedures recommended by the IMO in MSC/Circ.1140/ MEPC/Circ.424 of 20 December 2004 on the transfer of ships between States should strengthen the provisions relating to a change of flag in the IMO Conventions and in Community maritime safety legislation and should increase transparency in the relationship between flag States in the interests of maritime safety.

(16)  Member States should apply harmonised requirements for certification and survey by the flag State to the ships flying their flag as laid down in the relevant procedures and guidelines annexed to IMO Resolution A.948(23) on survey guidelines under the harmonised system of survey and certification.

(17)  Strict and thorough monitoring of the recognised organisations performing flag State duties on behalf of Member States commensurate with the size and nature of Member States" fleets should improve the overall performance of ships flying the flag of a Member State.

(18)  The fulfilment of minimum criteria by flag State surveyors should ensure a level playing field between maritime administrations and contribute to the performance of ships flying the flag of a Member State.

(19)  Member States have an obligation as flag States with regard to the investigation of casualties and incidents involving their ships.

(20)  Specific rules to be followed by the Member States for the investigation of accidents in the maritime transport sector are laid down in Directive 2007/…/EC of the European Parliament and of the Council of ... establishing the fundamental principles governing the investigation of accidents in the maritime transport sector and amending Directives 1999/35/EC and 2002/59/EC(6).

(21)  Mandatory implementation of the IMO principles of safe manning should contribute to the performance of ships flying the flag of a Member State.

(22)  The development of a database providing essential information on ships flying the flag of a Member State, as well as on ships which have left a register of a Member State, should improve the transparency of performance of a high quality fleet and contribute to better monitoring of flag State obligations and to ensuring a level playing field between maritime administrations.

(23)  An evaluation and review of the performance of flag States and, where necessary, corrective measures, should ensure that all Member States appear on the white list of the Paris Memorandum of Understanding (MOU) on Port State Control.

(24)  The Member States have committed themselves to demonstrating their compliance with the mandatory IMO instruments, as requested by IMO Resolution A.974(24) on the framework and procedures for the Voluntary IMO Member State Audit Scheme of 1 December 2005.

(25)  The Voluntary IMO Member State Audit Scheme follows the standard quality management approach, which includes principles, criteria, audit areas, audit process and procedures which are suitable for determining to what extent Member States are implementing and enforcing the flag State obligations and responsibilities contained in the mandatory IMO conventions to which they are parties. This auditing process could therefore be introduced into Community maritime safety law.

(26)  A quality certification of administrative procedures in accordance with ISO or equivalent standards should further ensure a level playing field between maritime administrations.

(27)  To ensure a level playing field between shipowners operating ships under the flag of a Member State and those operating ships under other flags, synergies should be established between flag States which commit themselves to implementing in a mandatory way the Code for the implementation of mandatory IMO instruments adopted by the IMO in Resolution A.973(24) of 1 December 2005 and which agree to be audited in accordance with the provisions of IMO Resolution A.974(24).

(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) with a view to increasing 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 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.

(29)  The European Maritime Safety Agency (EMSA) established by Regulation (EC) No 1406/2002 of the European Parliament and of the Council(7) should provide the necessary support to ensure the implementation of this Directive.

(30)  The measures necessary for the implementation of this Directive should be adopted in accordance with Council Decision 1999/468/EC of 28 June 1999 laying down the procedures for the exercise of implementing powers conferred on the Commission(8).

(31)  Since the objectives of this Directive, namely the introduction and implementation of appropriate measures in the field of maritime transport policy, cannot be sufficiently achieved by the Member States and can therefore, by reason of its scale, be better achieved at Community level, the Community may adopt measures, in accordance with the principle of subsidiarity as set out in Article 5 of the Treaty. In accordance with the principle of proportionality, as set out in that Article, this Directive does not go beyond what is necessary in order to achieve those objectives,

HAVE ADOPTED THIS DIRECTIVE:

Article 1

Subject-matter

1.  The purpose of this Directive is:

   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;
   b) to enhance safety and prevent pollution from ships flying the flag of a Member State;
   c) to provide a mechanism for harmonised interpretations of the measures laid down in the IMO Conventions which have been left to the discretion of the contracting parties to those conventions.

2.  This Directive is without prejudice to Community maritime legislation, as listed in Article 2(2) of Regulation (EC) No 2099/2002 of the European Parliament and of the Council(9), and to Council Directive 1999/63/EC(10).

Article 2

Definitions

1.  For the purpose of this Directive, the following definitions shall apply:

  (a) "IMO Conventions" means the following conventions, together with the protocols and amendments thereto and related codes of mandatory status adopted in the framework of the International Maritime Organisation (IMO), in their up-to-date version:
   i) the 1974 International Convention for the Safety of Life at Sea (SOLAS 74);
   ii) the International Convention on Load Lines, 1966 (LL 66);
   iii) the International Convention on Tonnage Measurement of Ships, 1969 (Tonnage 69);
   iv) the International Convention for the Prevention of Pollution from Ships (MARPOL);
   v) the International Convention on Standards of Training, Certification and Watchkeeping for Seafarers (STCW 1978);
   vi) the Convention on International Regulations for Preventing Collisions at Sea, 1972 (COLREG 72);
   vii) the 1991 Code of Safe Practice for Ships Carrying Timber Deck Cargoes;
   viii) the 1965 Code of Safe Practice for Solid Bulk Cargoes (BC Code);
   b) "specific IMO Conventions" means the 1993 Torremolinos Protocol relating to the Torremolinos International Convention for the Safety of Fishing Vessels 1977, and the 2001 International Convention on the control of harmful anti-fouling systems on ships;

c)   "flag State Code (FSC)" means parts 1 and 2 of the "Code for the implementation of mandatory IMO instruments", adopted by the IMO in Resolution A.973(24);

   d) "ships" means ships and crafts to which one or more of the IMO Conventions is applicable;
   e) "administration" means the competent maritime authorities of the Member State whose flag a ship or craft is entitled to fly;
   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;
   g) "recognised organisation" means an organisation recognised in accordance with Directive 2007/…/EC [on common rules and standards for ship inspection and survey organisations and for the relevant activities of maritime administrations];
   h) "certificates" means statutory certificates related to the IMO Conventions.

2.  Measures to amend the definitions in points (a), (b) and (c) of paragraph 1 in the light of new conventions or provisions may be adopted in accordance with the regulatory procedure referred to in Article 18(2).

Article 3

Implementation of the international framework

1.  Member States shall become party to the IMO Conventions and to the specific IMO Conventions. However, this obligation only refers to those conventions in their versions as at the date of the entry into force of this Directive.

2.  Member States which at the date of entry into force of this Directive are not yet party to all the IMO Conventions and the specific IMO Conventions shall start the procedures for the ratification thereof or accession thereto, in accordance with their national law. They shall notify the Commission within 90 days of the entry into force of this Directive of the expected date on which they will deposit the instrument of ratification or accession to those conventions with the Secretary-General of the International Maritime Organization.

3.  Member States shall clearly assign within their administrations the tasks related to the setting-up and development of policies to implement the flag State related obligations contained in the IMO Conventions, and ensure that their administrations are able properly to contribute to the adoption of national legislation and to provide guidance for the implementation and enforcement thereof.

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) set out in Annex I to this Directive.

5.  Member States shall continually improve the adequacy of the measures which are taken to give effect to the IMO Conventions. Improvement shall be made through rigorous and effective application and enforcement of national legislation, as appropriate, and continuous monitoring of compliance.

6.  In accordance with the regulatory 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 to:

   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;
   c) standardise the interpretation and application of provisions laid down in the Conventions.

Article 4

Resources and processes for administering safety and pollution prevention requirements

1.  Member States shall ensure that their administrations have available appropriate resources commensurate with the size and nature of their fleet. These resources shall:

   a) ensure compliance with the requirements of the IMO Conventions and specific conventions, the FSC and the relevant ILO instruments;
   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;
   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;
   d) comprise an appropriate number of qualified personnel to implement and enforce national legislation implementing the IMO Conventions, including qualified flag State surveyors to carry out investigations, audits, inspections and surveys;
   e) comprise a sufficient number of qualified flag State personnel to investigate incidents where ships entitled to fly the flag of the Member State concerned have been detained by port States; and
   f) comprise a sufficient number of qualified flag State personnel to investigate incidents where the validity of a certificate or endorsement or competence of individuals holding certificates or endorsements issued under the authority of the Member State concerned is questioned by port States.

2.  Member States 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.

3.  Member States 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 their fleet.

4.  Minimum requirements for the implementation of the obligations set out in paragraphs 1 and 2 shall be established in accordance with the regulatory procedure referred to in Article 18(2).

Article 5

Registration of a ship under a the flag of a Member State

1.  Prior to registration of any ship, the Member State concerned shall verify the identity of the ship, including the IMO Ship Identification Number, where appropriate, and other records of the ship, so that the ship does not fly the flags of two or more States simultaneously. Evidence shall be obtained that a ship previously registered under another State's flag has been deleted from that State's register, or that consent to the transfer of the ship has been obtained from that State's register.

2.  As a precondition for registration of a ship in its register for the first time the Member State concerned shall endeavour to 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.

3.  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 of 21 April 2004 on the transfer of cargo and passenger ships between registers within the Community(11).

4.  Whenever another flag State requests information concerning a ship which has left the register of a Member State, that Member State shall promptly provide details of deficiencies, non-conformities with the applicable timescales and any other safety related information to the other flag State.

5.  Paragraphs 1, 2 and 4 shall apply without prejudice to Article 4 of Regulation (EC) No 789/2004.

Article 6

Ensuring the safety of ships flying the flag of a Member State

1.  Member States shall take all necessary measures to secure compliance with international rules and standards by ships entitled to fly their flag. These measures shall in particular include the following:

   a) prohibiting ships from sailing until such ships can proceed to sea in compliance with international rules and standards;
   b) ensuring the periodic inspection of ships to verify that the actual condition of the ship and its crew is in conformity with the certificates it carries;
   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;
   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;
   e) providing, in national laws and regulations, for penalties of adequate severity to discourage violation of international rules and standards by ships;
   f) instituting proceedings, after an investigation has been conducted, against ships which have violated international rules and standards, irrespective of where the violation has occurred;
   g) providing, in national laws and regulations, for penalties of adequate severity to discourage violations of international rules and standards by individuals issued with certificates or endorsements under their authority; and
   h) instituting proceedings, after an investigation has been conducted, against individuals holding certificates or endorsements who have violated international rules and standards, irrespective of where the violation has occurred.

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 system(12), 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.

3.  Member States, or recognised organisations acting on their behalf, shall only issue or endorse certificates to a ship after they have determined that the ship meets all applicable requirements.

4.  Member States shall only issue an international certificate of competency or endorsement to a person after it has determined that the person meets all applicable requirements.

5.  Member States shall ensure that their ships have been surveyed in accordance with the relevant procedures and guidelines under the harmonised system of survey and certification as annexed to IMO Resolution A.948(23), in its up-to-date version.

6.  When a ship flying the flag of a Member State is detained by a port State, the flag State shall take action in accordance with the guidance set out in Annex III.

7.  Annex III may be amended in accordance with the regulatory procedure referred to in Article 18(2) in order to improve the guidance in the light of the experience gained in the implementation of the existing arrangements.

Article 7

Delegation of authority for statutory tasks

1.  Without prejudice to Directive 94/57/EC or Directive 2007/…/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.

They shall ensure that a direct internet communication link is established between the administration and the recognised organisations and that the staff involved in the monitoring of the recognised organisations have a good knowledge of the rules of those organisations and of the flag State and are available to carry out effective field oversight of the recognised organisations.

2.  Member States to which paragraph 1 applies shall provide for the possibility of conducting supplementary investigations concerning ships flying their flag in order to ensure that they comply with the IMO Conventions and national requirements.

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 less than two years; and
   b) have been detained pursuant to Council Directive 95/21/EC of 19 June 1995 concerning the enforcement, in respect of shipping using Community ports and sailing in the waters under the jurisdiction of the Member States, of international standards for ship safety, pollution protection and shipboard living and working conditions(13) or to Directive 2007/…/EC of the European Parliament and of the Council of ... [on port State control](14) at some point in the last 12 months.

4.  Once detailed rules of inspection adopted under Article 5(2) of Directive 2007/…/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.

5.  Member States to which paragraph 1 applies shall further:

   a) issue to their recognised organisations specific instructions detailing actions to be taken in the event that a ship is found unfit to proceed to sea without danger to the ship or persons on board, or is found to present an unreasonable threat of harm to the marine environment; and,
   b) provide their recognised organisations with all appropriate instruments of national law and interpretations thereof giving effect to the provisions of the IMO conventions or specify whether the administration's standards go beyond convention requirements in any respect.

6.  Guidelines necessary to establish investigation 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 regulatory procedure referred to in Article 18(2).

Article 8

Flag State surveyors

1.  Member States shall define and document the responsibilities, authority and interrelation of all flag State personnel who manage, perform and verify work relating to and affecting safety and pollution prevention.

2.  Member States shall ensure that the personnel responsible for or performing surveys, inspections and audits on ships and companies comply with the minimum criteria laid down in Annex II.

3.  Member States shall ensure that the personnel, other than that referred to in paragraph 2, assisting in the performance of flag State obligations have the education, training and supervision commensurate with the tasks they are authorised to perform.

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.

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 on the hull of ships, and, if necessary, to the other personnel referred to in paragraph 3.

6.  To improve the guidelines in the light of experience acquired in implementing the provisions in force, Annex II may be amended by the regulatory procedure referred to in Article 18(2).

7.  Minimum qualification requirements for the personnel referred to in paragraph 3 may be established in accordance with the regulatory procedure referred to in Article 18(2).

Article 9

Flag State investigations

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 in Resolution A.849(20), as annexed to IMO 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.

Article 10

Safe manning

Member States shall ensure that the ships flying their flags are adequately manned from the point of view of safety of life at sea and observe the principles of safe manning, as laid down in IMO Resolution A.890(21) on principles of safe manning, in its up-to-date version, taking into account the relevant guidelines attached to that Resolution.

Article 11

Accompanying measures

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 the database for their ships, while having the possibility of extracting and exchanging data with them.

2.  The following information shall be included in the database of each Member State:

   a) individual information, for each ship registered:
   i) particulars of the ship (name, IMO number, etc.), date of registration and, if appropriate, of removal from the register,
   ii) identification of the recognised organisations involved in the certification and classification of the ship on the instructions of the flag State,
   iii) dates and outcome (deficiencies: yes or no, description, repairs performed or pending; detentions: yes or no, 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,
   iv) identification of the body which has inspected the ship under Port State control provisions and dates of the inspections,
   v) outcome of the port State control inspections (deficiencies: yes or no, description, repairs performed or pending; detentions: yes or no, and duration),
   vi) information on casualties,
   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(15),
  b) general information concerning all ships in its register:
   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.

3.  The list of information in paragraph 2 may be amended in the light of developments related to new databases in accordance with the regulatory procedure referred to in Article 18(2).

Harmonised formats for the provision of data may be established in accordance with the regulatory procedure referred to in Article 18(2).

4.  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.

Article 12

Evaluation and review of the performance of flag States

1.  Member States shall annually evaluate their performance with respect to the provisions of this Directive.

2.  Measures to evaluate the performance of the flag States shall include, inter alia, port State control detention rates, flag State inspection results, casualty statistics, communication and information processes, annual loss statistics, excluding constructive total losses, and other performance indicators as may be appropriate, to determine whether staffing, resources and administrative procedures are adequate to meet the flag State obligations.

3.  A common methodology for evaluating flag State performance shall be established in accordance with the regulatory procedure referred to in Article 18(2).

4.  Member States which on 1 July of any calendar year appear on the black or grey list as published in the annual report of the Paris MOU on Port State Control, shall provide the Commission before 1 September of the same year with an extensive report on their lack of performance as flag State. That report shall identify and analyse the main reasons for the lack of performance and identify the categories of ships leading to that result. The report shall also comprise a plan for remedial action, including supplementary surveys when appropriate, that will be implemented at the earliest opportunity.

Article 13

Flag State auditing process

1.  Each Member State shall ensure that an independent audit of its compliance with this Directive is carried out within three years of the entry into force of this Directive, and at regular intervals thereafter.

2.  The framework and the procedures for the audit referred to in paragraph 1 shall be established in accordance with the regulatory procedure referred to in Article 18(2).

However, audits conducted in accordance with the provisions of IMO Resolution A.974(24) shall be accepted as the audit referred to in paragraph 1, if the conditions laid down in paragraph 3 have been fulfilled. The acceptance is without prejudice to any additional inspection undertaken by the Commission or at its request in order to check compliance with Community maritime legislation.

3.  Member States shall ensure:

   a) that compliance with the provisions of this Directive will also be audited;
   b) that the Commission is given the possibility to participate as an observer, in the IMO auditing process;
   c) that the report and the information on subsequent action taken is immediately made available to the Commission.

4.  In accordance with the regulatory procedure referred to in Article 18(2):

   a) a timetable shall be established for the performance of the audits referred to in paragraph 1;
   b) the conditions for the publicity to be given to audit results shall be determined.

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.

Article 14

Quality certification

1.  Each Member State shall develop, implement and maintain a quality management system for its Administration. Such quality management system shall be certified in accordance with the ISO 9001:2000 standards or an equivalent standard fulfilling at least all aspects of ISO 9001:2000, and it shall be audited in accordance with the guidelines of the ISO 19011:2002 or equivalent standard fulfilling all aspects of ISO 19011:2002. Directive 98/34/EC of the European Parliament and of the Council(16) shall be complied with in relation to the said equivalent standards.

2.  The quality management system shall be set up within a period of three years from the entry into force of this Directive.

3.  The quality management system shall be certified within a period of four years from the entry into force of this Directive.

4.  . The references in paragraph 1 to ISO standards may be updated in accordance with the regulatory procedure referred to in Article 18(2).

Article 15

Co-operation agreements

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 Community, Member States and third countries on flag State control obligations which aims 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 through IMO Resolution A.973(24) and agreed to be audited in accordance with the provisions of IMO Resolution A.974(24).

Article 16

Sending of information and notices

1.  Member States shall communicate to the IMO and the Commission the information required by the IMO Conventions.

2.  Each year the Member States shall inform the Commission as to:

   a) the number of inspections and audits they have carried out as flag States;
   b) the resources allocated to the tasks referred to in Article 4(1) and (2) as well as in Article 7(1);
   c) the measures taken to comply with Articles 6 to 11, Article 12(1) and Article 15.

3.  A harmonised specimen form for the information obligations referred to in paragraph 2 may be established in accordance with the regulatory procedure referred to in Article 18(2).

4.  The Commission shall, after having received the information 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.

Article 17

Amendments

In addition to the amendments provided for in Article 2(2), Article 6(7) and Article 11(3), this Directive may be amended in accordance with the regulatory procedure referred to in Article 18(2) in order to take account of new flag State related provisions and commitments developed at international level, in particular, in the IMO and the ILO.

The amendments to the IMO Conventions and to the Code for the implementation of mandatory IMO instruments may be excluded from the scope of this Directive pursuant to Article 5(2) of Regulation (EC) No 2099/2002.

Article 18

Committee

1.  The Commission shall be assisted by the Committee on Safe Seas and the Prevention of Pollution from Ships (COSS) established by Article 3 of Regulation (EC) No 2099/2002.

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

The period laid down in Article 5(6) of Decision 1999/468/EC shall be set at two months.

Article 19

Transposition

1.  Member States shall bring into force the laws, regulations and administrative provisions necessary to comply with this Directive by […] at the latest. They shall forthwith communicate to the Commission the text of those provisions and a correlation table between those provisions and this Directive.

When Member States adopt those provisions, they shall contain a reference to this Directive or be accompanied by such reference on the occasion of their official publication. Member States shall determine how such reference is to be made.

2.  Member States shall communicate to the Commission the text of the main provisions of national law which they adopt in the field covered by this Directive.

Article 20

Entry into force

This Directive shall enter into force on the twentieth day following that of its publication in the Official Journal of the European Union.

This Directive is addressed to the Member States.

Done at

For the European Parliament For the Council

The President The President

ANNEX I

FLAG STATE CODE (FSC)

PARTS 1 AND 2 OF THE CODE FOR THE IMPLEMENTATION OF MANDATORY IMO INSTRUMENTS

PART 1 – COMMON AREAS

Objective

1.  The objective of this Code is to enhance global maritime safety and protection of the marine environment.

2.  Different Administrations will view this Code according to their own circumstances and will be bound only for the implementation of those instruments referred to in paragraph 6 to which they are Contracting Governments or Parties. By virtue of geography and circumstance some Administrations may have a greater role as a flag State than as a port State or as a coastal State, whilst others may have a greater role as a coastal State or port State than as a flag State. Such imbalances do not diminish, in any way, their duties as a flag, port or coastal State.

Strategy

3.  In order for a State to meet the objective of this Code a strategy should be developed, covering the following issues:

   1) implementation and enforcement of relevant international mandatory instruments;
   2) adherence to international recommendations, as appropriate;
   3) continuous review and verification of the effectiveness of the State in respect of meeting its international obligations; and
   4) the achievement, maintenance and improvement of overall organisational performance and capability.

In implementing the aforementioned strategy, the guidance given in this Code should be adhered to.

General

4.  Under the provisions of the United Nations Convention on the Law of the Sea 1982 (UNCLOS) and of IMO conventions, Administrations are responsible for promulgating laws and regulations and for taking all other steps which may be necessary to give these instruments full and complete effect so as to ensure that, from the point of view of safety of life at sea and protection of the marine environment, a ship is fit for the service for which it is intended and is manned with competent maritime personnel.

5.  In taking measures to prevent, reduce and control pollution of the marine environment, States shall act so as not to transfer, directly or indirectly, damage or hazards from one area to another or transform one type of pollution into another (UNCLOS, Article 195).

Scope

6.  The mandatory IMO instruments addressed in this Code are:

1)   the International Convention for the Safety of Life at Sea, 1974, as amended (SOLAS 74);

2)   the Protocol of 1978 relating to the International Convention for the Safety of Life at Sea 1974, as amended (SOLAS PROT 1978);

3)   the Protocol of 1988 relating to the International Convention for the Safety of Life at Sea, 1974, as amended (SOLAS PROT 1988);

4)   the International Convention for the Prevention of Pollution from Ships, 1973, as modified by the Protocol of 1978 (MARPOL 73/78);

5)   the Protocol of 1997 to amend the International Convention for the Prevention of Pollution from Ships, 1973, as modified by the Protocol of 1978 relating thereto (MARPOL PROT 1997);

6)   the International Convention on Standards of Training, Certification and Watchkeeping for Seafarers, 1978, as amended (STCW);

7)   the International Convention on Load Lines, 1966 (LL 66);

8)   the Protocol of 1988 relating to the International Convention on Load Lines, 1966 (LL PROT 1988);

9)   the International Convention on Tonnage Measurement of Ships, 1969 (Tonnage 69); and

10)   the Convention on the International Regulations for Preventing Collisions at Sea, 1972, as amended (COLREG 72);

as well as all instruments made mandatory through these conventions and protocols. Non-exhaustive lists of obligations under the above mandatory instruments are found in Annexes 1 to 4. A list of the relevant instruments is given in Annex 5 and a summary of amendments to mandatory instruments reflected in the Code is given in Annex 6(17).

Initial actions

7.  When a new or amended IMO mandatory instrument enters into force for a State, the Government of that State must be in a position to implement and enforce its provisions through appropriate national legislation and to provide the necessary implementation and enforcement infrastructure. This means that a Government of the State must have:

   1) the ability to promulgate laws which permit effective jurisdiction and control in administrative, technical and social matters over ships flying its flag and, in particular, provide the legal basis for general requirements for registries, the inspection of ships, safety and pollution-prevention laws applying to such ships and the making of associated regulations;
   2) a legal basis for the enforcement of its national laws and regulations, including the associated investigative and penal processes; and
   3) the availability of sufficient personnel with maritime expertise to assist in the promulgation of the necessary national laws and to discharge all the responsibilities of the State, including reporting as required by the respective conventions.

8.  A possible framework for national legislation to give effect to the provisions of relevant IMO instruments can be found in "Guidelines for Maritime Legislation", a United Nations publication(18).

Communication of information

9.  The State should communicate its strategy, as referred to in paragraph 3, including information on its national legislation to all concerned.

Records

10.  Records, as appropriate, should be established and maintained to provide evidence of conformity to requirements and of the effective operation of the State. Records should remain legible, readily identifiable and retrievable. A documented procedure should be established to define the controls needed for the identification, storage, protection, retrieval, retention time and disposition of records.

Improvement

11.  States should continually improve the adequacy of the measures which are taken to give effect to those conventions and protocols which they have accepted. Improvement should be made through rigorous and effective application and enforcement of national legislation, as appropriate, and monitoring of compliance.

12.  The State should stimulate a culture which provides opportunities to people for improvement of performance in maritime safety and environmental protection activities.

13.  Further, the State should take action to identify and eliminate the cause of any non-conformities in order to prevent recurrence, including:

   1) review and analysis of non-conformities;
   2) implementation of necessary corrective action; and
   3) review of the corrective action taken.

14.  The State should determine action to eliminate the causes of potential non-conformities in order to prevent their occurrence.

PART 2 – FLAG STATES

Implementation

15.  In order to effectively discharge their responsibilities and obligations, flag States should:

   1) implement policies through the issuance of national legislation and guidance which will assist in the implementation and enforcement of the requirements of all safety and pollution prevention conventions and protocols they are party to; and
   2) assign responsibilities within their Administration to update and revise any relevant policies adopted, as necessary.

16.  Flag States should establish resources and processes capable of administering a safety and environmental protection program which, as a minimum, should consist of the following:

   1) administrative instructions to implement applicable international rules and regulations as well as develop and disseminate any interpretative national regulations that may be needed;
   2) resources to ensure compliance with the requirements of the mandatory IMO instruments listed in paragraph 6 using an audit and inspection programme independent of any administrative bodies issuing the required certificates and relevant documentation and/or of any entity which has been delegated authority by the flag States to issue the required certificates and relevant documentation;
  3) resources to ensure compliance with the requirements of the 1978 STCW Convention, as amended. This includes resources to ensure, inter alia, that:
   3. 1 training, assessment of competence and certification of seafarers are in accordance with the provisions of the Convention;
   3.2 STCW certificates and endorsements accurately reflect the competencies of the seafarers, using the appropriate STCW terminology as well as terms which are identical to those used in any safe manning document issued to the ship;
   3. 3 impartial investigation can be held of any reported failure, whether by act or omission, that may pose a direct threat to safety of life or property at sea or to the marine environment, by the holders of certificates or endorsements issued by that Party;
   3. 4 certificates or endorsements issued by the flag State can be effectively withdrawn, suspended or cancelled when warranted, and when necessary to prevent fraud; and
   3. 5 administrative arrangements, including those involving training, assessment and certification activities conducted under the purview of another State, are such that the flag State accepts its responsibility for ensuring the competence of masters, officers and other seafarers serving on ships entitled to fly its flag(19);
   4) resources to ensure the conduct of investigations into casualties and adequate and timely handling of cases of ships with identified deficiencies; and
   5) the development, documentation and provision of guidance concerning those requirements that are to the satisfaction of the Administration, found in relevant mandatory IMO instruments.

17.  Flag States shall ensure that ships entitled to fly their flag are sufficiently and efficiently manned, taking into account the Principles of Safe Manning adopted by IMO.

Delegation of authority

18.  Flag States authorising recognised organisations to act on their behalf in conducting the surveys, inspections, the issue of certificates and documents, the marking of ships and other statutory work required under the IMO conventions must regulate such authorisation in accordance with SOLAS regulation XI-1/1 to:

   1) determine that the recognised organisation has adequate resources in terms of technical, managerial and research capabilities to accomplish the tasks being assigned, in accordance with the Minimum standards for recognised organisations acting on behalf of the Administration set out in the relevant IMO resolution(20);
   2) have as its basis a formal written agreement between the Administration and the recognised organisation which, as a minimum, includes the elements set out in the relevant IMO resolution(21), or equivalent legal arrangements, and which may be based on the model agreement for the authorisation of recognised organisations acting on behalf of the Administration(22);
   3) issue specific instructions detailing actions to be followed in the event that a ship is found unfit to proceed to sea without danger to the ship or persons on board, or is found to present an unreasonable threat of harm to the marine environment;
   4) provide the recognised organisation with all appropriate instruments of national law and interpretations thereof giving effect to the provisions of the conventions or specify whether the Administration's standards go beyond convention requirements in any respect; and
   5) require that the recognised organisation must maintain records which will provide the Administration with data to assist in interpretation of convention regulations.

19.  Flag States nominating surveyors for the purpose of carrying out surveys and inspections on their behalf should regulate such nominations, as appropriate, in accordance with the guidance provided in paragraph 18, in particular points (3) and (4) thereof.

20.  The flag State should establish or participate in an oversight programme with adequate resources for monitoring of, and communication with, its recognised organisations in order to ensure that its international obligations are fully met, by:

   1) exercising its authority to conduct supplementary surveys to ensure that ships entitled to fly its flag in fact comply with mandatory IMO instruments;
   2) conducting supplementary surveys as it deems necessary to ensure that ships entitled to fly its flag comply with national requirements which supplement the IMO convention requirements; and
   3) providing staff who have a good knowledge of the rules and regulations of the flag State and the recognised organisations and who are available to carry out effective field oversight of the recognised organisations.

Enforcement

21.  Flag States should take all necessary measures to secure observance of international rules and standards by ships entitled to fly their flag and by entities and persons under their jurisdiction so as to ensure compliance with their international obligations. Such measure should, inter alia, include:

   1) prohibiting ships entitled to fly their flag from sailing until such ships can proceed to sea in compliance with the requirements of international rules and standards;
   2) the periodic inspection of ships entitled to fly their flag to verify that the actual condition of the ship and its crew is in conformity with the certificates it carries;
  3) the surveyor ensuring, during the periodic inspection referred to in subparagraph 2, that seafarers assigned to the ships are familiar with:
   3. 1 their specific duties; and
   3. 2 ship arrangements, installations, equipments and procedures;
   4) 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;
   5) providing in national laws and regulations for penalties of adequate severity to discourage violation of international rules and standards by ships entitled to fly their flag;
   6) instituting proceedings – after an investigation has been conducted - against ships entitled to fly their flag which have violated international rules and standards, irrespective of where the violation has occurred;
   7) providing in national laws and regulations for penalties of adequate severity to discourage violations of international rules and standards by individuals issued with certificates or endorsements under their authority; and
   8) instituting proceedings – after an investigation has been conducted – against individuals holding certificates or endorsements who have violated international rules and standards, irrespective of where the violation has occurred.

22.  A flag State should consider developing and implementing a control and monitoring programme, as appropriate, in order to:

   1) provide for prompt and thorough casualty investigations, with reporting to IMO as appropriate;
   2) provide for the collection of statistical data, so that trend analyses can be conducted to identify problem areas; and
   3) provide for a timely response to deficiencies and alleged pollution incidents reported by port or coastal States.

23.  Furthermore, the flag State should:

   1) ensure compliance with applicable IMO instruments through national legislation;
   2) provide an appropriate number of qualified personnel to implement and enforce the national legislation referred to in subparagraph 15.1, including personnel for performing investigations and surveys;
   3) provide a sufficient number of qualified flag State personnel to investigate incidents where ships entitled to fly its flag have been detained by port States;
   4) provide a sufficient number of qualified flag State personnel to investigate incidents where the validity of a certificate or endorsement or competence of individuals holding certificates or endorsements issued under its authority are questioned by port States; and
   5) ensure the training and oversight of the activities of flag State surveyors and investigators.

24.  When a State is informed that a ship entitled to fly its flag has been detained by a port State, the flag State should oversee that appropriate corrective measures to bring the ship in question into immediate compliance with the applicable international conventions are taken.

25.  A flag State, or a recognised organisation acting on its behalf, should only issue or endorse an international certificate to a ship after it has determined that the ship meets all applicable requirements.

26.  A flag State should only issue an international certificate of competency or endorsement to a person after it has determined that the person meets all applicable requirements.

Flag State surveyors

27.  The flag State should define and document the responsibilities, authority and interrelation of all personnel who manage, perform and verify work relating to and affecting safety and pollution prevention.

28.  Personnel responsible for, or performing, surveys, inspections and audits on ships and companies covered by the relevant IMO mandatory instruments should have as a minimum the following:

   1) appropriate qualifications from a marine or nautical institution and relevant sea-going experience as a certificated ship officer holding or having held a valid STCW II/2 or III/2 certificate of competency and have maintained their technical knowledge of ships and their operation since gaining their certificate of competency; or
   2) a degree or equivalent from a tertiary institution within a relevant field of engineering or science recognised by the State.

29.  Personnel qualified under 28(1) should have served for a period of not less than three years at sea as officer in the deck or engine department.

30.  Personnel qualified under 28(2) should have worked in a relevant capacity for at least three years.

31.  In addition such personnel should have appropriate practical and theoretical knowledge of ships, their operation and the provisions of the relevant national and international instruments necessary to perform their duties as flag State surveyors obtained through documented training programmes.

32.  Other personnel assisting in the performance of such work should have education, training and supervision commensurate with the tasks they are authorised to perform.

33.  Previous relevant experience in the field of expertise should be considered an advantage; in case of no previous experience the Administration should provide appropriate field training.

34.  Flag States may accredit surveyors through a formalised, detailed training programme that leads to the same standard of knowledge and ability as that required in paragraphs 29 to 32.

35.  The flag State should have implemented a documented system for qualification of personnel and continuous updating of their knowledge as appropriate to the tasks they are authorised to undertake.

36.  Depending on the function(s) to be performed the qualifications should encompass:

   1) knowledge of applicable international and national rules and regulations for ships, their companies, their crew, their cargo and their operation;
   2) knowledge of the procedures to be applied in survey, certification, control, investigative and oversight functions;
   3) understanding of the goals and objectives of the international and national instruments dealing with maritime safety and protection of the marine environment, and of related programmes;
   4) understanding of the processes both on board and ashore, internal as well as external;
   5) possession of professional competency necessary to perform the given tasks effectively and efficiently;
   6) full safety awareness in all circumstances, also for one's own safety; and
   7) training or experience in the various tasks to be performed and, preferably, also in the functions to be assessed.

37.  The flag State should issue an identification document for the surveyor to carry when performing his/her tasks.

Flag State investigations

38.  Investigations should be carried out following a marine casualty or pollution incident. Casualty investigations should be conducted by suitably qualified investigators, competent in matters relating to the casualty. The flag State should be prepared to provide qualified investigators for this purpose, irrespective of the location of the casualty or incident.

39.  The flag State should ensure that individual investigators have working knowledge and practical experience in those subject areas pertaining to their normal duties. Additionally, to assist individual investigators in performing duties outside their normal assignments, the flag State should ensure ready access to expertise in the following areas, as necessary:

   1) navigation and the Collision Regulations;
   2) flag State regulations on certificates of competency;
   3) causes of marine pollution;
   4) interviewing techniques;
   5) evidence gathering; and
   6) evaluation of the effects of the human element.

40.  Any accidents involving personal injury necessitating absence from duty of three days or more and any deaths resulting from occupational accidents and casualties to ships of the flag State should be investigated, and the results of such investigations made public.

41.  Ship casualties should be investigated and reported upon in accordance with relevant IMO conventions, and the guidelines developed by IMO(23). The report on the investigation should be forwarded to IMO together with the flag State's observations, in accordance with the guidelines referred to above.

Evaluation and review

42.  The flag States should, on a periodic basis, evaluate their performances with respect to the implementation of administrative processes, procedures and resources necessary to meet their obligations as required by the conventions to which they are party.

43.  Measures to evaluate the performance of the flag States may include, inter alia, port State control detention rates, flag State inspection results, casualty statistics, communication and information processes, annual loss statistics (excluding constructive total losses (CTLs)), and other performance indicators as may be appropriate, to determine whether staffing, resources and administrative procedures are adequate to meet their flag State obligations.

44.  Measures may include a regular review of:

   1) fleet loss and accident ratios to identify trends over selected time periods;
   2) the number of verified cases of detained ships in relation to the size of the fleet;
   3) the number of verified cases of incompetence or wrongdoing by individuals holding certificates or endorsements issued under its authority;
   4) responses to port State deficiency reports or interventions;
   5) investigations into serious casualties and lessons learned there from;
   6) financial, technical and other resources committed;
   7) results of inspections, surveys and controls of the ships in the fleet;
   8) investigation of occupational accidents;
   9) the number of incidents and violations under MARPOL 73/78, as amended; and
   10) the number of suspensions or withdrawals of certificates, endorsements, approvals, etc.

ANNEX II

MINIMUM CRITERIA FOR FLAG STATE SURVEYORS

(as referred to in Article 8)

1.  Surveyors must be authorised to carry out the surveys referred to in this Directive by the competent authority of the relevant Member State.

2.  Surveyors must have appropriate theoretical knowledge and practical experience of ships, their operation and of the provisions of the relevant national and international requirements. This knowledge and experience must be acquired through documented training programmes.

3.  Surveyors must, as a minimum, either:

   1) hold the diploma required by law to serve as an officer on the deck or in the engine department of a ship, obtained from a marine or nautical institution, providing evidence of a minimum of three years" experience as an officer at sea, or, alternatively, of one year at sea plus another two years" service with the competent authority of a Member State in a position as a trainee Flag State Surveyor, or hold or have held a valid STCW II/2 or III/2 certificate of competency;
   2) have 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 have so worked for a period of one year, and also have served a period of two years with the competent authority of a Member State as a practising flag State surveyor; or
   3) hold a relevant university degree or equivalent and have been trained and have qualified at a training institute for surveyors, and have served at least two years with the competent authority of a Member State in a position as a trainee flag State surveyor.

4.  Surveyors qualified under points 3(1) and 3(2) must have maintained their technical knowledge of ships and their operation since gaining their certificate of competency or qualifications.

5.  Surveyors qualified under point 3(3) must have the same standard of knowledge and ability as that required for surveyors qualified under points 3(1) and 3(2).

6.  Surveyors must have the ability to communicate orally and in writing with seafarers in the language most commonly spoken at sea.

7.  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.

8.  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.

ANNEX III

GUIDANCE ON FOLLOW UP ACTIONS ON SHIPS DETAINED BY A PORT STATE

(as referred to in Article 6)

1.  Detention by a Port State

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.

2.  Immediate actions

1.  As soon as the flag State is informed of the detention it should make contact with the company (the company for ISM purposes) and the port State to establish, as far as possible, the full circumstances of the detention.

2.  Based on this information the flag State should consider what immediate action is necessary to bring the ship into compliance. It may consider that some deficiencies can be readily rectified and confirmed by the port State (for example a life-raft which needs servicing). In such cases the flag State should seek confirmation from the port State that the deficiencies have been rectified.

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.

4.  In cases where the RO has carried out the inspection referred to in paragraph 3, its surveyor should report to the flag State on the actions taken and the condition of the ship following this inspection so that the flag State may determine what further action, if any, is necessary.

5.  If the inspection by the port State has also been suspended in accordance with Article 9(4) of Directive 95/21/EC or Article 13(5) of Directive 2007/…/EC [on port State control] the flag State should arrange for re-survey of the ship for those certificates covering the areas where deficiencies have been recorded by the port State and for any other areas that are subsequently found to be deficient. The flag State should either conduct this survey themselves or require a full report from the surveyor from the RO and, when appropriate, confirmation that a satisfactory survey has been completed and that all deficiencies have been rectified. When satisfied, the flag State should confirm to the port State that the ship complies with the requirements of the relevant regulations and international conventions.

6.  In cases of the most serious non-compliance with regulations and international conventions the flag State should always send its own surveyor, rather than a surveyor from the RO, to conduct or oversee the inspections and surveys referred to in paragraphs 3 to 5.

7.  Unless paragraph 10 applies, the flag State shall require that corrective measures are taken by the company to bring the ship into compliance with the applicable regulations and international conventions before the ship is allowed to sail from the port of detention (in addition to the corrective action required by the port State). If such corrective action is not taken the relevant certificates should be withdrawn.

8.  The flag State should consider the extent to which the deficiencies recorded by the port State and found following a flag State inspection/survey indicate a failure of the safety management system of the ship and the company. As necessary the flag State should arrange for the re-audit of the ship and/or company and in liaison with the port State, consider whether this re-audit should take place before the ship is allowed to leave the port of detention.

9.  At all times the flag State should liaise and cooperate with the port State to help ensure the rectification of deficiencies found and respond as quickly as possible to any requests for clarification from the port State.

10.  If deficiencies cannot be rectified in the port of detention and the port State, in accordance with Article 11(1) of Directive 95/21/EC or Article 15(1) of Directive 2007/…/EC [on port State control], allows the ship to proceed to a repair yard the flag State should liaise with the port State to determine the conditions under which this voyage may take place and confirm these conditions in writing.

11.  If the ship does not comply with the conditions referred to in paragraph 10 or fails to call at the agreed repair yard the flag State should immediately seek an explanation from the company and consider withdrawing the ship's certificates. In addition the flag State should carry out an additional survey at the first available opportunity.

12.  If from the information available the flag State considers that the detention is unjustified it should make its concerns known to the port State and liaise with the company to consider whether to use the appeal procedure available in the port State.

3.  Subsequent actions

1.  Depending on the seriousness of the deficiencies found and the immediate follow up action taken, the flag State should in addition consider carrying out a additional survey of the ship after it has been released from detention. This additional survey should include an assessment of the effectiveness of the safety management system. As a guide an additional survey of the ship should be carried out by the flag State within [6] weeks of its being informed of the detention. This additional survey should be at the company's expense. If the flag State is scheduled to carry out a statutory survey on the ship within [3] months it may consider delaying the additional survey until that time.

2.  Additionally the flag State should consider whether a re-audit of the company involved should be carried out. The flag State should also review the inspection history of other ships under the responsibility of the same company in order to identifying whether there are any common failings throughout that company's fleet.

3.  If the ship has been justifiably detained more than once in the previous 2 years the follow up action should be more urgent and in any case an additional survey by the flag State should be carried out within [4] weeks of the flag State being informed of the detention.

4.  If the detention also leads to the banning of the ship in accordance with Article 7b of Directive 95/21/EC or Article 10 of Directive 2007/…/EC [on port State control] the flag State must carry out an additional survey and take all the necessary steps to ensure that the company brings the ship into full compliance with all of the relevant conventions and regulations. When content, the flag State should provide to the company a document to this effect.

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.

6.  When all corrective measures to bring the ship into compliance with the international conventions and Community regulations have been completed, the flag State should send to the 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, containing additional information relating to Community related provisions with regard to the Commission.

4.  Additional survey

1.  The additional survey as referred to above should include an examination of the following areas to sufficient depth to satisfy the flag State surveyor that the ship, its equipment and its crew comply with all regulations and international conventions applicable to them:

Certificates and documents

Hull Structure and equipment

Conditions of assignment of loadlines

Main machinery and systems

Cleanliness of machinery spaces

Life-saving appliances

Fire safety

Navigation equipment

Cargo handling equipment

Radio equipment

Electrical equipment

Pollution prevention

Living and working conditions

Manning

Crew certification

Passenger safety

Operational requirements including crew communication, drills, training, bridge and engine room operations and security.

2.  It should also include, but not be limited to, the relevant items for an expanded inspection specified in Annex V to Directive 95/21/EC or Part C of Annex VIII to Directive 2007/…/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 318, 23.12.2006, p. 195.
(2) OJ C 229, 22.9.2006, p. 38.
(3) Position of the European Parliament of 29 March 2007.
(4) OJ L ...
(5) OJ L 144, 15.5.1998, p. 1. Directive as last amended by Commission Directive 2003/75/EC (OJ L 190, 30.7.2003, p. 6).
(6) OJ L ...
(7) OJ L 208, 5.8.2002, p. 1. Regulation as last amended by Regulation (EC) No 1891/2006 (OJ L 394, 30.12.2006, p. 1).
(8) OJ L 184, 17.7.1999, p. 23. Decision as amended by Decision 2006/512/EC (OJ L 200, 22.7.2006, p. 11).
(9) OJ L 324, 29.11.2002, p. 1. Regulation as last amended by Commission Regulation (EC) No 93/2007 (OJ L 22, 31.1.2007, p. 12).
(10) OJ L 167, 2.7.1999, p. 33.
(11) OJ L 138, 30.4.2004, p. 19.
(12) OJ L 208, 5.8.2002, p. 10.
(13) OJ L 157, 7.7.1995, p. 1. Directive as last amended by Directive 2002/84/EC of the European Parliament and of the Council (OJ L 324, 29.11.2002, p. 53).
(14)* OJ: Please insert number.
(15) OJ L 255, 30.9.2005, p. 11.
(16) OJ L 204, 21.7.1998, p. 37. Directive as last amended by the 2003 Act of Accession.
(17) These Annexes will be filled in at the occasion of MSC 80 (May 2005). Only Annexes 1, 2 and 5 are relevant for the flag State obligations.
(18) ST/ESCAP/1076.
(19) Regulations I/2, I/9, I/10 and I/11 of the 1978 STCW Convention, as amended.
(20) Appendix 1 of Resolution A.739(18) "Guidelines for the authorization of organizations acting on behalf of the Administration".
(21) Appendix 2 of Resolution A.739(18) "Guidelines for the authorization of organizations acting on behalf of the Administration".
(22) MSC/Circ.710 – MEPC/Circ.307.
(23) Refer to the Code for the Investigation of Marine Casualties and Incidents, adopted by the Organization by Resolution A.849(20), as amended by Resolution A. 884(21).

Legal notice - Privacy policy