Explanatory Memorandum to COM(2020)58 - EU position on amendments to the convention on pollution from ships and on safety of life at sea and to the Code of Safety for Ships Using Gases or Other Low-flashpoint Fuels - Main contents
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This page contains a limited version of this dossier in the EU Monitor.
| dossier | COM(2020)58 - EU position on amendments to the convention on pollution from ships and on safety of life at sea and to the Code of Safety ... |
|---|---|
| source | COM(2020)58  |
| date | 17-02-2020 |
1. Subject matter of the proposal
This proposal concerns the decision establishing the position to be taken on the Union's behalf at the 75th session of the International Maritime Organization’s Marine Environment Protection Committee (MEPC 75), which will take place in London from 30 March to 3 April 2020 and at the 102nd session of the International Maritime Organization’s Maritime Safety Committee (MSC 102), which will take place in London from 13 to 22 May 2020, in connection with the envisaged adoption of amendments to MARPOL Annex VI relating to the consistent implementation of the 0.50% sulphur limit and amendments to SOLAS Chapter II-1: regulation 3-8 of part A-1 on towing and mooring equipment, regulation 7-2 of part B-1 on the calculation of the factor si and on parts B-2 to B-4 regarding watertight integrity and amendments to parts A-1 and B-1 of the International Code of Safety for Ships Using Gases or other Low-flashpoint Fuels (IGF Code).
2. Context of the proposal
2.1.The Convention on the International Maritime Organization
The Convention on the International Maritime Organization (IMO) establishes the IMO. The IMO’s purpose is to provide a forum for co-operation in the field of regulation and practices relating to technical matters of all kinds affecting shipping engaged in international trade. It furthermore aims to encourage the general adoption of the highest practicable standards in matters concerning maritime safety, efficiency of navigation and prevention and control of marine pollution from ships, promoting a level playing field. It also to deal with related administrative and legal matters.
The Convention entered into force on 17 March 1958.
All Member States are parties to the Convention.
All Member States are parties to the International Convention for the Prevention of Pollution from Ships (‘MARPOL’), 1973, which entered into force on 2 October 1983 and to Annex VI, which entered into force on 18 May 2005. The Union is not a party to MARPOL.
All Member States are parties to the International Convention for the Safety of Life at Sea ('SOLAS'), 1974, which entered into force on 25 May 1980. The Union is not a party to SOLAS.
The International Code of Safety for Ship Using Gases or Other Low-flashpoint Fuels (IGF Code) was made mandatory under the SOLAS Convention. Its purpose is to provide an international standard for ships operating with gas or low-flashpoint liquids as fuel. The Code addresses all areas that need special consideration for the usage of gas or low-flashpoint liquids as fuel. It provides criteria for the arrangement and installation of machinery for propulsion and auxiliary purposes, using natural gas as fuel, which will have an equivalent level of integrity in terms of safety, reliability and dependability as that which can be achieved with a new and comparable conventional oil fuelled main and auxiliary machinery.
2.2.The International Maritime Organization
The International Maritime Organization (IMO) is the United Nations’ specialised agency with responsibility for the safety and security of shipping and the prevention of marine pollution by ships. It is the global standard-setting authority for the safety, security and environmental performance of international shipping. Its main role is to create a regulatory framework for the shipping industry that is fair and effective, universally adopted and universally implemented.
Membership in the Organization is open to all States and all EU Member States are members of the IMO. Since 1974, the European Commission has held an observer status in the International Maritime Organisation (IMO). This is based on an Arrangement for Co-operation and Collaboration between the Inter-Governmental Maritime Consultative Organisation (IMCO) and the Commission of the European Communities on matters of mutual interest to the parties.
The IMO’s Marine Environment Protection Committee consists of all the IMO Members and meets at least once a year. It addresses environmental issues under the scope of the Organization as regards the control and prevention of ship-source pollution covered by the MARPOL treaty, including oil, chemicals carried in bulk, sewage, garbage and emissions from ships to air, including air pollutants and greenhouse gas emissions. Other matters covered include ballast water management, anti-fouling systems, ship recycling, pollution preparedness and response, and identification of special areas and particularly sensitive sea areas.
The IMO Marine Environment Protection Committee provides machinery for performing any duties assigned to it by the IMO Convention, the IMO Assembly or the IMO Council, or any duty within the above scope which may be assigned to it by or under any other international instrument and accepted by the IMO. Decisions of the Marine Environment Protection Committee, and of its subsidiary bodies shall be adopted by a majority of the Members.
The IMO Maritime Safety Committee also consists of all the IMO Members and meets at least once a year. It considers any matter within the scope of the Organization concerned with aids to navigation, construction and equipment of vessels, manning from a safety standpoint, rules for the prevention of collisions, handling of dangerous cargoes, maritime safety procedures and requirements, hydrographic information, log-books and navigational records, marine casualty investigation, salvage and rescue, and any other matters directly affecting maritime safety.
The IMO Maritime Safety Committee provides machinery for performing any duties assigned to it by the IMO Convention, the IMO Assembly or the IMO Council, or any duty within the above scope which may be assigned to it by or under any other international instrument and accepted by the IMO. Decisions of the Maritime Safety Committee, and of its subsidiary bodies shall be adopted by a majority of the Members.
2.3.The envisaged act of the IMO’s Marine Environment Protection Committee
On 30 March – 3 April 2020, during its 75th session (MEPC 75), the Marine Environment Protection Committee is to adopt amendments to MARPOL Annex VI. They relate to the application of the 0.50% sulphur limit used in fuel oils on board ships. The purpose of the envisaged amendments to MARPOL Annex VI is to support the consistent implementation of the 0.50% sulphur limit.
In 2008, the IMO adopted a resolution to amend MARPOL Annex VI containing regulations addressing the prevention of air pollution from ships. The revised Annex VI to MARPOL entered into force on 1 July 2010 and introduced, inter alia, stricter sulphur limits for marine fuel in SOx Emission Control Areas as well as in sea areas outside SOx Emission Control Areas.
Robust enforcement of the fuel oil standard set out in regulation 14.1.3 of MARPOL Annex VI, which became effective on 1 January 2020, will be an important element in order to facilitate a consistent implementation and the effective enforcement of the global sulphur limit of 0.50%. The purpose of the envisaged amendments to MARPOL Annex VI is to ensure the effective implementation of regulation 14.1.3, with a view to significantly reducing air polluting emissions of SOx and particle matter to the atmosphere resulting from ship combustion in order to protect human health and the marine environment.
2.4.The envisaged act of the IMO’s Maritime Safety Committee
On 13 – 22 May 2020, during its 102nd session (MSC 102), the Maritime Safety Committee is to adopt amendments to the International Convention of Safety of Life at Sea (SOLAS) and amendments to regulation 11 of the International Code of Safety for Ship Using Gases or Other Low-flashpoint Fuels (IGF Code).
The purpose of the envisaged amendments to regulation 3-8 of part A-1 of chapter II-1 of SOLAS relates to safe towering and mooring. The purpose of the amendments to parts B, B-1 and B-2 – B-4 of chapter II-1of SOLAS is to ensure consistency with regard to watertight integrity. Generally, not all types of ships are installed with the indicators in question (rudder, propeller, thrust, pitch and operating model indicator).
The envisaged amendments to regulation 11 of the International Code of Safety for Ship Using Gases or Other Low-flashpoint Fuels (IGF Code) aim at providing consistency to the IGF Code, regarding the existing requirements for ships using natural gas as fuel by introducing necessary amendments based on the experience gained on the application of the Code.
3. Position to be taken on the Union's behalf
3.1.Amendments to regulation MARPOL Annex VI
During the 71st session of the Marine Environment Protection Committee (MEPC 71), which took place in London 3 – 7 July 2017, a new output on 'Consistent implementation of regulation 14.1.3 of MARPOL Annex VI' was approved, for inclusion in the biennial agenda for 2018-2019 of the Sub-Committee on Pollution Prevention and Response and in the provisional agenda for the 5th session of the Sub-Committee on Pollution Prevention and Response (PPR 5), with a target completion year of 2019.
PPR 5, which took place in London 5 – 9 February 2018, developed draft amendments to regulation 14 of MARPOL Annex VI for a prohibition on the carriage of non-compliant fuel oil for combustion purposes for propulsion or operation on board a ship. With minor modifications, the 72nd session of the Marine Environment Protection Committee (MEPC 72), which took place in London 9 – 13 April 2018, approved the draft amendments to MARPOL Annex VI.
The Intersessional Meeting on consistent implementation of regulation 14.1.3 of MARPOL Annex VI took place in London from 9 – 13 July 2018. The European Union submitted document ISWG-AP 1/3/2, proposing amendments to regulation 14 and regulation 18.
MEPC 73 adopted the amendments agreed by resolution MEPC.305 (73). MEPC 73 determined that these amendments shall be deemed to have been accepted on 1 September 2019 and shall enter into force on 1 March 2020.
PPR 6, which took place in London from 18 – 22 February 2019 developed draft amendments to:
–regulation 1 on the application of the regulation;
–regulation 2 providing definitions of 'sulphur content of fuel oil', 'low-flashpoint fuel', 'MARPOL delivered sample', 'in-use sample', and 'onboard sample';
–regulation 14 on in-use and onboard fuel oil sampling and testing for a MARPOL Annex VI fuel oil sample;
–regulation 18 concerning the verification procedure;
–appendix I on 'the Supplement to the IAPP Certificate', concerning fuel oil sampling point; and
–appendix VI concerning the Fuel verification procedure for MARPOL Annex VI fuel oil samples.
PPR 6 referred these amendments to MEPC 74, which accepted them and referred them to MEPC 75 for adoption.
The amendments to regulations 1, 2, 14, 18, 20, 21 and appendices I and VI of MARPOL Annex VI are set out in IMO Document MEPC 75/3. Paragraph 5.116 of the MEPC 74 report (MEPC 74/18) indicates that the amendments are foreseen to be adopted at MEPC 75.
In light of the reinforced implementing provisions of Directive 2016/802, the Union should support these amendments as they reflect the need to globally enforce, in a robust and unambiguous manner, the 0.50% sulphur limit in marine fuel. This will ensure an effective reduction of sulphur oxide emissions, avoiding their detrimental effects on human health and in ecosystems, while avoiding distortion of competition in the sector.
3.2.Amendments to Chapter II-1 of the Convention of Safety of Life at Sea (SOLAS)
Contents
- 3.2.1.Amendments to SOLAS Chapter II-1/A-1/3-8 on towing and mooring equipment
- 3.4.1.Amendments to MARPOL Annex VI
- 3.4.2.Amendments to Chapter II-1 of the Convention of Safety of Life at Sea (SOLAS)
- 3.4.3.Amendments to parts A-1 and B-1 of the International Code of Safety for Ship Using Gases or Other Low-flashpoint Fuels (IGF Code)
- 3.4.4.EU competence
- 4.1.1.Principles
- 4.1.2.Application to the present case
- 4.2.1.Principles
- 4.2.2.Application to the present case
The issue of safe mooring was raised by the EU as a new unplanned output at the 95th session of MSC (document MSC 95/19/2) and accepted by MSC. A Japanese proposal to add consideration of maintenance and replacement of damaged or deteriorated mooring lines (document MSC 95/19/13) was also accepted by MSC. The issue was then considered by the Sub Committee on Ship Design and Construction (SDC) both in a working group and through a Correspondence Group, coordinated by Denmark along with Japan. The 6th session of SDC (SDC 6) finalised the draft amendments to SOLAS and the related guidelines and guidance. The 101st session of the Maritime Safety Committee (MSC 101) then considered the outcome of SDC, namely:
–Amendments to SOLAS regulation 3-8 of part A-1 of Chapter II-1,
–Guidelines on the design of mooring arrangements and the selection of appropriate mooring equipment and fittings for safe mooring,
–Guidelines for inspection and maintenance of mooring equipment including lines, and
–Revised guidance on shipboard towing and mooring equipment and the associated draft MSC circular, i.e. MSC.1/Circ.1175/Rev.1, and
–all the associated draft MSC circulars
MSC 101 approved the draft SOLAS amendments set out in Annex 25 of the MSC report MSC 101/24 Add.1. The related Guidelines and guidance were approved in principle at MSC 101 and will finally be approved in conjunction with the adoption of the draft SOLAS amendments. Paragraphs 12.2-9 of the MSC 101 report (MSC 101/24) indicates that the SOLAS amendments and related guidelines and guidance are foreseen to be adopted and approved respectively at MSC 102.
As the amendments to SOLAS and associated guidelines, guidance and MSC circulars provide a comprehensive upgrade in current mooring arrangements. They correspond to the intent of the original Union proposal, so the Union should support the adoption of the SOLAS amendments and the approval of the related instruments.
3.2.2.Watertight integrity – consistency between regulations in SOLAS Chapter II-1 B, B-1 and B-2 – B-4
At its 96th session MSC had agreed to include in the 2018-2019 biennial agenda of the Committee an output on 'Review SOLAS chapter II-1, parts B-2 to B-4, to ensure consistency with parts B and B-1 with regard to watertight integrity', assigning the SDC Sub Committee as the coordinating organ.
SDC 6 finalised the draft amendments to SOLAS and referred them to MSC 101. The amendments to parts B, B-1 and B-2 – B-4 of SOLAS Chapter II-1 are set out in Annex 25 of document MSC 101/24 Add.1.
As regards the calculation of the factor si in regulation 7-2 of SOLAS Chapter II-1 B-1, SDC came to the view that while developing amendments to SOLAS regulation II-1/7-2.5 was outside the scope of the output, an amendment to SOLAS was the most efficient and effective way to address the inherent inconsistencies in SOLAS regulation II-1/7-2.5.2.1 regarding doors in bulkheads above the bulkhead deck that are considered watertight in the damage stability calculations. SDC 6 agreed to request MSC 101 to concur with this approach to solve the inconsistencies as regards watertight integrity between the various parts of B in SOLAS Chapter II-1. MSC 101 did so (paragraph 12.10 of MSC 101 report MSC 101/24 refers) and the amendments are also setout in Annex 25 of document MSC 101/24 Add.1.
Paragraph 12.12 of the MSC 101 report (MSC 101/24) indicates that the above amendments are foreseen to be adopted at MSC 102.
Since the amendments to SOLAS chapter II-1, parts B-2 to B-4 introduce coherence throughout part B in the provisions on watertight integrity, including the key issue of ship damage stability calculations, and their approval was supported by the Union at MSC 101, the Union should support the adoption of these amendments.
3.3.Amendments to parts A-1 and B-1 of the International Code of Safety for Ship Using Gases or Other Low-flashpoint Fuels (IGF Code)
The 5th session of the Sub Committee on the Carriage of Cargoes and Containers (CCC 5) agreed to draft amendments to paragraph 6.7.1.1 (pressure relief systems) and chapter 11 (fuel preparation room fire extinguishing systems) of part A-1 of the IGF Code, as set out in annex 2 of the CCC report, CCC 5/13, for submission to MSC 101 for approval (paragraph 3.31 of the CCC 5/13 refers). MSC 101 then approved these draft amendments, as set out in annex 14 of MSC 101/24 Add.1. Paragraph 9.2 of the MSC 101 report (MSC 101/24) indicates that the amendments are foreseen to be adopted at MSC 102
CCC 5 also approved draft amendments to paragraph 16.3.3.5.1 concerning tensile tests for materials other than aluminium alloys for the fuel containment system of part B-1 of the IGF Code, as set out in annex 5 of CCC 5/13 for submission to MSC 101 for approval (paragraph 4.14 of CCC 5/13 refers). MSC 101 then approved these amendments as set out in annex 14 of MSC 101/24 Add.1. Paragraph 9.3 of MSC 101/24 indicates that the amendments are foreseen to be adopted at MSC 102.
The amendment to paragraph 6.7.1.1 provides greater clarity on spaces to be provided with a suitable pressure relief system. The amendment to chapter 11 to include a fixed fire extinguishing system for a fuel preparation room provides additional safety. Both have previously been supported for approval at MSC 101 by the Union. Therefore, the Union should support the adoption of these amendments.
3.4.Relevant EU legislation and EU competence
MARPOL Annex VI requirements, with regard to the reduction of sulphur content of marine fuel oils with a view decrease SOx air polluting emissions, are implemented in EU law in Directive (EU) 2016/802 of the European Parliament and of the Council of 11 May 2016 relating to a reduction in the sulphur content of certain liquid fuels. Therefore, the amendments due to be adopted at MEPC 75 which introduce changes to MARPOL Annex VI will have a direct effect on the Directive's requirements.
Article 6(2)(a)(i) of Directive 2009/45/EC on safety rules and standards for passenger ships applies SOLAS, as amended, to Class A passenger ships.
Therefore, the amendments due to be adopted at MSC 102, which would introduce changes to Chapter II-1, parts A and B will have a direct effect on the Directive's requirements.
3.4.3.Amendments to parts A-1 and B-1 of the International Code of Safety for Ship Using Gases or Other Low-flashpoint Fuels (IGF Code)
Article 6(2)(a)(i) of Directive 2009/45/EC on safety rules and standards for passenger ships applies SOLAS, as amended, to Class A passenger ships. The IGF Code is made mandatory for passenger ships through SOLAS.
Therefore, the amendments due to be adopted at MSC 102, would have a direct effect on requirements through the application of Directive 2009/45/EC.
The amendments to MARPOL Annex VI would affect EU law through the application of Directive (EU) 2016/802 of the European Parliament and of the Council of 11 May 2016 relating to a reduction in the sulphur content of certain liquid fuels.
The amendments to Chapter II-1 of the Convention of Safety of Life at Sea (SOLAS) would affect EU law through the application of Directive 2009/45/EC.
The amendments to parts A-1 and B-1 of the International Code of Safety for Ship Using Gases or Other Low-flashpoint Fuels (IGF Code) would affect EU law though the application of Directive 2009/45/EC.
The Union, therefore, has exclusive competence by virtue of the last limb of Article 3(2) TFEU and it is, thus, necessary to establish the position of the Union on the acts adopting the above-mentioned amendments.
4. Legal basis
4.1.Procedural legal basis
Article 218(9) of the Treaty on the Functioning of the European Union (TFEU) provides for decisions establishing ‘the positions to be adopted on the Union’s behalf in a body set up by an agreement, when that body is called upon to adopt acts having legal effects, with the exception of acts supplementing or amending the institutional framework of the agreement.’
Article 218(9) TFEU applies regardless of whether the Union is a member of the body or a party to the agreement. 1
The concept of ‘acts having legal effects’ includes acts that have legal effects by virtue of the rules of international law governing the body in question. It also includes instruments that do not have a binding effect under international law, but that are ‘capable of decisively influencing the content of the legislation adopted by the EU legislature’. 2
The IMO Marine Environment Protection Committee and the Maritime Safety Committee are bodies set up by an agreement, namely the Convention on the International Maritime Organization.
The acts which the IMO Marine Environment Protection Committee and the Maritime Safety Committee are called upon to adopt constitute acts having legal effects. The envisaged acts are capable of decisively influencing the content of the following EU legislation
–Directive (EU) 2016/802 of the European Parliament and of the Council of 11 May 2016 relating to a reduction in the sulphur content of certain liquid fuels and Regulation (EU) No 530/2012 of the European Parliament and of the Council on the accelerated phasing-in of double-hull or equivalent design requirements for single-hull oil tankers. This is because Directive (EU) 2016/802 of the European Parliament and of the Council of 11 May 2016 relating to a reduction in the sulphur content of certain liquid fuels reflects the sulphur-related requirements of MARPOL Annex VI as the tool to achieve its aim.
–Directive 2009/45/EC of the European Parliament and of the Council on safety rules and standards for passenger ships. This is because Directive 2009/45 establishes that passenger ships of Class A are to comply entirely with the requirements of the SOLAS Convention, as amended.
Therefore, the amendments to MARPOL Annex VI, the amendments to SOLAS and the amendments to the IGF Code would affect EU law through the application of Directive (EU) 2016/802 of the European Parliament and of the Council of 11 May 2016 relating to a reduction in the sulphur content of certain liquid fuels 3 and Directive 2009/45/EC of the European Parliament and of the Council of 6 May 2009 on safety rules and standards for passenger ships respectively.
The envisaged act does not supplement or amend the institutional framework of the Agreement.
Therefore, the procedural legal basis for the proposed decision is Article 218(9) TFEU.
4.2.Substantive legal basis
The substantive legal basis for a decision under Article 218(9) TFEU depends primarily on the objective and content of the envisaged act in respect of which a position is taken on the Union's behalf. If the envisaged act pursues two aims or has two components and if one of those aims or components is identifiable as the main one, whereas the other is merely incidental, the decision under Article 218(9) TFEU must be founded on a single substantive legal basis, namely that required by the main or predominant aim or component.
The main objective and content of the envisaged act relate to sea transport. Therefore, the substantive legal basis of the proposed decision is Article 100(2) TFEU.
4.3.Conclusion
The legal basis of the proposed decision should be Article 100(2) TFEU, in conjunction with Article 218(9) TFEU.