Explanatory Memorandum to COM(2020)117 - EU position in the Port State Control Committee of the Paris Memorandum of Understanding on port State control - Main contents
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This page contains a limited version of this dossier in the EU Monitor.
| dossier | COM(2020)117 - EU position in the Port State Control Committee of the Paris Memorandum of Understanding on port State control. |
|---|---|
| source | COM(2020)117  |
| date | 31-03-2020 |
1. Subject matter of the proposal
This proposal concerns the decision establishing the position to be taken on the Union's behalf in the Port State Control Committee of the Paris Memorandum of Understanding on port State control in connection with the envisaged adoption of decisions necessary for the correct functioning of the EU regime on port State control (PSC) is set out in Directive 2009/16/EC 1 .
2. Context of the Proposal
2.1. The Paris Memorandum of Understanding (PMoU) on Port State Control
The Paris Memorandum of Understanding (Paris MOU) provides for an international inspection regime for foreign ships in other national ports by PSC officers for the purpose of verifying that the competency of the master, officers and crew on board, the condition of a ship and its equipment comply with the requirements of international conventions and that the vessel is manned and operated in compliance with applicable international law. The Paris MOU was signed on 26 January 1982.
Directive 2009/16/EC (as amended) incorporates the procedures and tools of the Paris MOU. All EU Member States with maritime ports 2 as well as Canada, Russia, Iceland and Norway are members of the Paris MOU. The European Union is not a member of the Paris MOU.
2.2. The envisaged act of the Port State Control Committee of the Paris MoU
In order for PSC in the Union to function a certain number of decisions have to be taken each year in the context of the Paris MOU. These decisions are taken by consensus at the annual 'Port State Control Committee' (PSCC) which meets in May of each year. By virtue of Directive 2009/16/EC decisions taken by the appropriate competent body of the Paris MOU become binding on EU Member States.
3. POSITION TO BE TAKEN ON THE UNION'S BEHALF
Pursuant to Article 218(9) of the Treaty on the Functioning of the European Union, the position to be adopted on behalf of the Union in international organisations such as the Paris MOU when they are called upon to adopt acts having legal effects, must be adopted by Council Decision, on a proposal from the Commission.
In 2016, Council Decision (EU) 2016/381 3 set out the position to be adopted, on behalf of the European Union, within the PSCC for the period 2016-2019. The Council Decision was established according to a two-tier approach. The Decision itself set out the guiding principles and orientations of the Union's position on a multiannual basis. This was adjusted for each annual PSCC meeting by Commission non-papers to be discussed in the Council Shipping Working Party. The present proposal aims at setting out the Union's position for PSCC for the period 2020-2024.
The approach provided for in this proposal is due to the characteristics of the decisional process in PMoU. The internal rules of the PMoU fix the latest date for submission of any documents by its members and the task forces charged with the development of guidelines and instructions at six weeks before the meeting of the PSCC. It is only at that point that all submissions are available and the Commission can begin its analysis with a view to preparing a proposal for a coordinated Union position under Article 218(9) of the TFEU which has then to be adopted by the Council. As the time available for this analysis, the preparation of the Commission proposal and its adoption by Council is short, the process for the year to year specification of the Union position is set out in Annex 2.
4. Legal Basis
4.1. Procedural legal basis
4.1.1. Principles
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 4 .
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’ 5 .
4.1.2. Application to the present case
The Paris MOU is a body set up by an agreement.
The act which the Paris MOU is called upon to adopt constitutes an act having legal effects. The envisaged act is capable of decisively influencing the content of EU legislation, namely Directive 2009/16/EC on port State control because the PSCC of the Paris MOU adopts a number of decisions which have to be taken each year in order for the directive to function correctly.
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
4.2.1. Principles
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.
4.2.2. Application to the present case
The main objective and content of the envisaged act relate to transport. Therefore, the substantive legal basis of the proposed decision is Article 100(2).
4.3. Conclusion
The legal basis of the proposed decision should be Article 100(2), in conjunction with Article 218(9) TFEU.