Title VI, in particular Article 91(1)(c) and Article 100(2), of the Treaty on the Functioning of the European Union
Safety at sea to protect passengers and crew members and also to protect the marine environment and coastal regions is a fundamental objective of sea transport policy. The global dimensions of sea transport require the IMO (International Maritime Organisation) to develop safety standards designed to be as uniform as possible and recognised worldwide. The principal international agreements include the International Convention for the Prevention of Pollution from Ships (MARPOL), the International Convention for the Safety of Life at Sea (SOLAS) and the International Convention on Standards of Training, Certification and Watchkeeping for Seafarers (STCW).
The prompt amendment of EU law to take account of these international agreements is an essential objective of the EU’s sea transport policy. In the past, however, not all IMO measures have proved sufficient to improve safety at sea. It has therefore likewise been necessary both for Member States and/or the EU to participate in the further development and improvement of the international agreements and to adopt additional measures at EU level.
A. Fundamental legislation
As there are international rules to regulate safety at sea, the EU’s main contribution has been to transpose them into EU law, ensuring that they have legal force and uniform application throughout the Member States. The 1990s saw considerable progress in that direction.
1. Training of seafarers
Directive 94/58/EC of 22 November 1994 on the minimum level of training of seafarers conferred the force of EU law on the 1978 IMO Convention on Standards of Training, Certification and Watchkeeping for Seafarers (STCW). It was substantially amended several times in accordance with new international requirements, and its provisions were consolidated by Directive 2001/25/EC of 4 April 2001. The European Parliament (EP) and the Council have adopted a recast version, Directive 2008/106/EC of 19 November 2008. Not only does the directive specify the training rules and standards of competence with which those seeking to obtain a certificate have to comply, it also regulates many other matters such as special training requirements for particular categories of ships, the obligations of Member States regarding the training of seafarers, the requirements for communication between ships’ crew members and the verification of seafarers’ vocational competency certificates to be carried out at EU ports as a port state control procedure.
2. Marine equipment
Directive 96/98/EC of 20 December 1996 on marine equipment aims to ensure uniform application of the SOLAS Convention on marine equipment for commercial vessels and enforce the IMO resolutions deriving from it.
3. Safety of passenger craft
On 8 December 1995 the EU adopted Regulation (EC) No 3051/95 on the safety management of roll-on/roll-off passenger ferries (ro-ro ferries). This laid down a requirement to establish and maintain safety management systems.
The safety of vessels providing scheduled services between two EU ports is the subject of Directive 98/18/EC of 17 March 1998. In addition to compulsory safety standards, the directive provides for regular inspections of ships and certification by means of safety certificates. This directive was amended by Directive 2003/24/EC of 14 April 2003 and Directive 2203/75/EC of 29 July 2003.
Directive 98/41/EC of 18 June 1998 on the registration of persons sailing on board passenger ships makes it possible to monitor the number of passengers and thus improve the effectiveness and speed of rescue operations in the event of an accident.
4. Port state control
The aim of Directive 95/21/EC of 19 June 1995 is to enforce international environmental and safety standards more effectively by means of compulsory regular inspections at EU ports (port state control). As a result, the enforcement of safety standards and inspections of shipboard living and working conditions are no longer left purely to flag states, but to some extent have become a matter for the proper EU port authorities. The directive has been developed further under the new maritime safety packages (see below).
5. Ship inspection and survey organisations (classification societies)
Council Directive 94/57/EC of 22 November 1994 lays down common rules and standards for ship inspection and survey organisations (classification societies). It was amended under the Erika I package (see below).
B. Developments after the Erika and Prestige disasters
After the accidents involving the Erika and the Prestige, EU maritime safety standards were again tightened up considerably. In March and December 2000 the Commission put forward the ‘Erika I’ and ‘Erika II’ packages to bring about the necessary improvements. The following measures were adopted as a result.
1. The Erika I package
Directive 2001/105/EC of 19 December 2001 tightened up and simplified the EU rules and standards laid down in the original directive concerning ship inspection and survey organisations (classification societies). Its aim was to provide for uniform compliance with standards, more stringent quality requirements applicable to classification societies and greater transparency of findings, and to make classification societies more independent of shipowners or shipbuilding companies. The directive allows the Member States’ proper authorities to monitor classification societies. If the performance of classification societies is found wanting, their recognition can be temporarily suspended or withdrawn altogether. In the event of proven negligence, a classification society can under certain circumstances be held liable for the consequences of an incident involving a ship.
Directive 2001/106/EC of 19 December 2001 made port state control compulsory for certain potentially hazardous vessels. Member States are required to carry out inspections more frequently and more thoroughly and to conduct more extensive inspections of certain high-risk vessels such as gas, oil and chemical tankers. In addition, the directive introduced a ‘blacklist’. It thus became possible to deny access to EU ports to ships sailing under the flag of a blacklisted state (the blacklist is published in the annual report of the Paris Memorandum of Understanding) if previous inspections at other ports had shown safety on board to be inadequate.
Regulation (EC) No 417/2002 of 18 February 2002 laid down a fixed timetable for phasing out the use of single-hull oil tankers and provided for them to be replaced by 2015 at the latest with safer double-hull vessels, the deadlines depending on the size, type and age of the vessel. After the Prestige oil tanker disaster, the timetable was again accelerated considerably by Regulation (EC) No 1726/2003 of 22 July 2003. The use of single-hull tankers to carry particularly toxic
heavy oil to and from EU ports was banned immediately.
2. The Erika II package
Directive 2002/59/EC of 27 June 2002 established a Community vessel traffic monitoring and information system (SafeSeaNet). The operator of any vessel wishing to call at a port in a Member State must, in advance, supply various information to the relevant port authority, particularly concerning dangerous or polluting cargoes. A timetable was laid down for the compulsory fitting of vessels with automatic identification systems (AIS) and voyage data recording (VDR) systems (‘black boxes’). The directive gave Member States greater powers of intervention and allowed the authorities concerned to prohibit vessels from departing in bad weather conditions. It also required Member States to adopt plans for giving refuge to vessels in distress.
Regulation (EC) No 1406/2002 of 27 June 2002 established the European Maritime Safety Agency (EMSA). The EMSA’s task is to provide scientific and technical advice to the Commission and to monitor the implementation of legislation in the field of maritime safety. Its remit has gradually been expanded to include new duties in the field of pollution control and satellite-based vessel monitoring.
3. The third maritime safety package
After difficult negotiations the Council and the EP reached agreement in December 2008 on a third legislative package to further improve vessel safety and incident procedures. The package comprises:
? a recasting of the port state control directive (Directive 2009/16/EC of 23 April 2009) to make for more effective and more frequent inspections under new arrangements tailored to the particular risk profile;
? Directive 2009/21/EC of 23 April 2009 on compliance with flag state requirements, to allow more effective monitoring of compliance with international regulations by vessels flying the flag of a Member State;
? Directive 2009/17/EC of 23 April 2009 amending the directive establishing a Community vessel traffic monitoring and information system, the object of which, among other things, is to improve the legal framework regarding emergency moorings (places of refuge) for ships in distress and to further expand the SafeSeaNet information exchange system;
? Regulation (EC) No 391/2009 and Directive 2009/15/EC of 23 April 2009 on common rules and standards for ship inspection and survey organisations
— the changes to the earlier directive from the Erika I package were necessitated in part by the introduction of an independent quality control system to eliminate the remaining flaws in the inspection and certification procedures applied to the world fleet;
? Directive 2009/18/EC of 23 April 2009 establishing the fundamental principles governing the investigation of accidents in the maritime transport sector, which lays down standard principles for the conduct of investigations at sea and a system for pooling the findings;
? Regulation (EC) No 392/2009 of 23 April 2009 on the liability of carriers of passengers by sea in the event of accidents;
? Directive 2009/20/EC of 23 April 2009 on the insurance of shipowners for maritime claims.
C. Hazard control on ships and in port facilities
In response to the terrorist attacks on 11 September 2001, the ISPS Code was adopted at an IMO diplomatic conference in 2002, as were various amendments to other international agreements. The aim is to improve the protection of ships and port facilities, particularly against terrorist attack. Regulation (EC) No 725/2004 of 31 March 2004 is intended to ensure uniform interpretation and implementation of these IMO decisions. The regulation requires Member States, among other things, to carry out security assessments at their port facilities and monitor compliance with security regulations.
ROLE OF THE EUROPEAN PARLIAMENT
The EP has strongly supported the initiatives relating to safety at sea and has helped to make progress in this field by means of initiatives of its own.
After the Erika tanker disaster, the EP urged the Commission, in its resolutions of 20 January 2000 and 2 March 2000, to submit specific proposals for improving safety at sea.
The Erika I and Erika II maritime safety packages subsequently submitted by the Commission received the EP’s support. The EP urged that the legislative procedure be concluded swiftly and also secured important improvements. For example, despite the initial resistance of some EU governments, it inserted a provision requiring ships to be equipped with voyage data recording systems (‘black boxes’), which provide information that can be used in investigations after an accident.
After the Prestige oil tanker disaster off the coast of Spain in 2002, the EP decided to set up a Temporary Committee on Improving Safety at Sea (MARE). In the committee’s final report, which was adopted in April 2004, the EP made many recommendations for future measures in the field of safety at sea. It called for a comprehensive and coherent policy for maritime transport, based on a range of additional measures including: a ban on non-compliant ships, the introduction of a system of liability covering the entire maritime transport chain and improvements to living and working conditions and training for seafarers.
The EP also called for the establishment of a European coastguard, compulsory pilotage in environmentally sensitive and navigationally difficult sea areas and a clear decision-making and command structure in Member States for dealing with maritime emergencies, in particular as regards the mandatory assignment of an emergency mooring or place of refuge. The EP took the view that EU action, for instance the banning of flags of convenience from European territorial waters, might be necessary, and called upon the Commission to investigate the scope for introducing mandatory insurance for vessels in European waters. The Commission took many of these requests into account in its third package of measures to promote safety at sea. In the ensuing legislative procedure, the EP urged that the package be dealt with speedily in the Council.
Because of their highly controversial subject matter, two proposals included in the package, relating to flag state requirements and liability, led to protracted deadlock within the Council. In spite of the Council’s initially strong resistance, the EP managed, by exerting unceasing pressure, to secure agreement on every strand of the third maritime safety package while preserving key elements of the original Commission proposals.
As regards the revision of the directive on the Community vessel traffic monitoring and information system, the EP ensured that Member States would have to set up an additional authority empowered to take decisions on its own responsibility and to determine, in the event of an emergency, how disaster could best be averted and which port should accommodate a ship ‘in need of assistance’. The legal framework for places of refuge, which the EP had called for on several earlier occasions, is considered a sine qua non for greater safety at sea. If places of refuge were not encompassed within an organised system, it might take longer to decide on the most
suitable port for a ship in distress, with the result that valuable time would be lost.
In short, in the time spanning the first and second packages — and the life of its Temporary Committee on Improving Safety at Sea (MARE), in 2004 — up to the adoption of the third maritime safety package, the EP has been the driving force behind the visible improvements that have made shipping safer.