Explanatory Memorandum to COM(2021)127 - EU position in the IMO on the adoption of amendments to Standards of Training, inspections, fire safety systems and the Control of Harmful Anti-fouling Systems on Ships - Main contents
Please note
This page contains a limited version of this dossier in the EU Monitor.
| dossier | COM(2021)127 - EU position in the IMO on the adoption of amendments to Standards of Training, inspections, fire safety systems and the ... |
|---|---|
| source | COM(2021)127  |
| date | 18-03-2021 |
1. Subject matter of the proposal
This proposal concerns the decision establishing the position to be taken on the Union's behalf at the 103rd session of the International Maritime Organization’s Maritime Safety Committee (MSC 103), taking place virtually from 5 to 14 May 2021 and at the 76th session of the International Maritime Organization’s Marine Environment Protection Committee (MEPC 76), which will take place virtually from 7 to 17 June 2021. During MSC 103, it is envisaged to adopt amendments to:
–International Convention on Standards of Training, Certification and Watchkeeping for Seafarers (STCW Convention),
–International Code on the enhanced programme of inspections during surveys of Bulk carriers and Oil tankers (ESP Code),
–International Code for Fire Safety Systems (FSS Code)
During MEPC 76, it is envisaged to adopt amendments at to:
–The Convention on Antifouling Systems (AFS Convention)
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 IMO is open to all States and all EU Member States are IMO members. The EU’s relations with IMO are notably based on the Arrangement for Co-operation and Collaboration concluded between the Inter-Governmental Maritime Consultative Organisation (IMCO) and the Commission of the European Communities in 1974.
The IMO Maritime Safety Committee 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’s Marine Environment Protection Committee also 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.
Both IMO’s Maritime Safety Committee and Marine Environment Protection Committee provide machinery for performing any duties assigned to them by the IMO Convention, the IMO Assembly or the IMO Council, or any duty within the above scope which may be assigned to them by or under any other international instrument and accepted by the IMO. Decisions of the Maritime Safety Committee and the Marine Environment Protection Committee, and of their subsidiary bodies are adopted by a majority of their Members.
2.3.The envisaged acts of the IMO’s Maritime Safety Committee
On 5 to 14 May 2021, MSC 103 is to adopt amendments to the STCW Convention and Code, ESP Code, FSS Code, SOLAS Chapter III and the LSA Code.
The purpose of the envisaged amendments to regulation 1/1 of the STCW Convention is to include a definition of ‘high voltage’ and to section A-1/1 of the STCW Code is to amend the definition of ‘operational level’ to include the capacity ‘electro-technical officer’.
The purpose of the envisaged amendments to Annex 2 of Part A of Annex B of the 2011 ESP Code is to restrict the thickness measurement of double hull oil tankers at first renewal survey to only suspect areas.
The purpose of the envisaged amendments to Chapter 9 of the Fire Safety Systems (FSS) Code is to clarify the acceptability of less complex and costly section identifiable fault isolation for individually identifiable fire detector systems installed on cargo ships and passenger ship cabin balconies.
2.4.The envisaged act of the IMO’s Marine Environment Protection Committee
On 10 to 17 June 2021, MEPC 76 is to adopt amendments to the AFS Convention. The purpose of the envisaged amendments is to include cybutryne in the list of banned antifouling substances. This is an outcome of an EU initiative.
3. Position to be taken on the Union's behalf
3.1.Amendments to the International Convention on Standards of Training, Certification and Watchkeeping for Seafarers
During the 6th session of the Sub-Committee on Human Element, Training and Watchkeeping (HTW 6), which took place in London from 29 April to 3 May 2019, the Sub-Committee accepted a request by ITF proposing to clarify the operational level of the functions of 'electro-technical officer' in the definition of 'operational level' in section A-I/1 of the STCW Code (Definitions and clarifications) and the inclusion of a new definition of the term 'high-voltage' in this section.
The Sub-Committee subsequently agreed on the draft definition of 'high-voltage' to be included in STCW regulation I/1, as set out in annex 7 of HTW 6/13 for submission to MSC 102 for approval with a view to adoption. The Sub-Committee also agreed to the draft amendment to section A-I/1 of the STCW Code on the inclusion of the capacity 'electro-technical officer' in the definition of 'operational level', as a consequential amendment to the introduction of this capacity as part of the 2010 Manila Amendments, as set out in annex 8 of HTW 6/13, for submission to MSC 102 for approval with a view to adoption.
MSC 102 approved the amendments and paragraphs 13.9 and 13.10 of the MSC 102 report (MSC 102/24) indicate that the amendments are foreseen to be adopted at MSC 103.
The Union should support these amendments as they clarify the operational level of the functions of 'electro-technical officer' and introduce a common definition of the term ‘high-voltage’
3.2.Amendments to the International Code on the enhanced programme of inspections during surveys of Bulk carriers and Oil tankers (ESP Code)
At its 7th session, the Sub-Committee on Ship Design and Construction considered a proposal by IACS, backed up by a study, to amend annex 2 of part A of annex B of the 2011 ESP Code, as amended by resolution MSC.461(101), whereby it would be sufficient to consider only suspect areas for thickness measurements at the first renewal survey of double hull oil tankers. After a brief discussion, the Sub-Committee agreed to draft amendments to the 2011 ESP Code, as set out in annex 7, for submission to MSC 102 with a view to approval and subsequent adoption.
MSC 102 approved the amendments and paragraph 17.24 of the MSC report (MSC 102/24) indicates that the amendments are foreseen to be adopted at MSC 103. This matter was already included in the EU non-paper for MSC 102.
The Union should support these amendments as they allow IACS to focus on suspect areas for thickness measurements of double hull oil tankers.
3.3.Amendments to the International Code for Fire Safety Systems (FSS Code).
MSC 98 included a new output on 'Amendments to chapter 9 of the FSS Code for fault isolation requirements for cargo ships and passenger ship cabin balconies fitted with individually identifiable fire detector systems' in the 2018-2019 biennial agenda of the Sub-Committee and the provisional agenda for SSE 6, with a target completion year of 2020 (MSC 98/23, paragraph 20.34).
At its 7th session the Sub-Committee on Ship Systems and Equipment (SSE) agreed to the draft amendments to chapter 9 of the International Code for Fire Safety Systems (FSS Code) and the associated draft MSC resolution, as set out in annex 3 of its report SSE 7/21 with a view to approval by MSC 102.
MSC 102 approved the draft amendments to chapter 9 of the FSS Code, and paragraph 19.8 of the MSC report (MSC 102/24) indicates that the amendments are foreseen to be adopted at MSC 103.
The Union should support these amendments as they accommodate systems, which combine the enhanced safety of individually identifiable fire detectors, which are required for passenger ships, with the less complex and less costly section identifiable fault isolation, which are acceptable for cargo ships and passenger ship cabin balconies only.
3.4.Amendments to the Convention on Antifouling Systems
MEPC 71 accepted the EU request proposing a new output to amend Annex 1 to the International Convention on the Control of Harmful Anti-Fouling Systems on Ships (AFS) Convention, 2001, to include controls on cybutryne and forwarded it to the 5th session of the Sub-Committee on Pollution Prevention and Control (PPR 5) for consideration.
MEPC 73 noted that PPR 5, having first agreed that the initial proposal to amend annex 1 to the AFS Convention to include controls on cybutryne, as submitted on behalf of the Union in document PPR 5/19 together with the information contained in document PPR 5/INF.9, satisfied the requirements of annex 2 to the AFS Convention, had agreed that a more detailed review of cybutryne was warranted.
Following discussions at PPR 7, the Sub-Committee agreed to (1) the draft amendment to Annex 1 (Controls on anti-fouling systems) to the AFS Convention to include controls on cybutryne, as set out in annex 1 to annex 6, for consideration by MEPC 75, with a view to resolving the effective dates currently in square brackets and subsequent approval; and (2) the draft amendments to Annex 4 (Surveys and certification requirements for anti-fouling systems) to the AFS Convention, including the draft amendments to the model form of the International Anti-fouling System Certificate, for consideration by MEPC 75, with a view to approval.
MEPC 75 finalised the text of the amendments to the AFS Convention and paragraph 10.17 of the MEPC report (MEPC 75/18) indicates that the amendments are foreseen to be adopted at MEPC 76. The position to support these amendments was included in the EU non-paper for MEPC 75.
The Union initiated the call for a global ban on this antifouling substance, which has now been banned for sale within the EU. The Union should therefore support these amendments, as they will introduce a global ban of this substance, thus achieving the EU’s goal.
3.5.Relevant EU legislation and EU competence
Contents
- 3.5.1.Amendments to the International Convention on Standards of Training, Certification and Watchkeeping for Seafarers
- 3.5.2.Amendments to the International Code on the enhanced programme of inspections during surveys of Bulk carriers and Oil tankers
- 3.5.3.Amendments to the International Code for Fire Safety Systems (FSS Code)
- 3.5.4.Amendments to the Convention on Antifouling Systems
- 3.5.5.EU competence
- 4.1.1.Principles
- 4.1.2.Application to the present case
- Therefore, the amendments to
- 4.2.1.Principles
- 4.2.2.Application to the present case
3.5.1.Amendments to the International Convention on Standards of Training, Certification and Watchkeeping for Seafarers
Directive 2008/106/EC 1 requires Member States to ensure that seafarers are trained as a minimum in accordance with the requirements of the STCW Convention and apply the mandatory part A of the STCW Code. Article 1, paragraphs 6 and 7 of the Directive indicating the responsibilities for electrical issues for specific ship officers, and Regulation III/5 of Chapter I of Annex I, referring to the specific function of electrical, electronic and control engineering, to which the abilities specified in the standards of competence are assigned are particularly relevant in the case at hand. The amendments due to be adopted at MSC 103, which introduce changes to the STCW Code Part A, will affect the Directive's requirements.
3.5.2.Amendments to the International Code on the enhanced programme of inspections during surveys of Bulk carriers and Oil tankers
Articles 5 and 6 of Regulation ((EU) No 530/2012 of the European Parliament and of the Council 2 make mandatory the application of the IMO's Condition Assessment Scheme (CAS) to single hull oil tankers above 15 years of age. The Enhanced Programme of Inspections during surveys of Bulk Carriers and Oil tankers or Enhanced Survey Programme (ESP) specifies how to undertake this intensified assessment. As CAS uses ESP as the tool to achieve its aim, any changes to the ESP inspections, such as the current amendments to focus surveys only on suspect areas for thickness measurements at the first renewal survey of double hull oil tankers will automatically be applicable through Regulation (EU) No 530/2012.
Article 6(2)(a)(i) of Directive 2009/45/EC on safety rules and standards for passenger ships 3 applies SOLAS, as amended, to Class A passenger ships. The FSS Code is made mandatory for passenger ships through SOLAS.
Therefore, the amendments to the FSS Code due to be adopted at MSC 103, would affect requirements applicable through Directive 2009/45/EC.
The EU Biocidal Products Regulation (EU) No 528/2012 4 regulates the making available on the market and use of i.a. anti-fouling products. Following the outcome of several scientific studies and the peer review performed at EU level, the Commission adopted Implementing Decision (EU) 2016/107 of 27 January 2016 5 that effectively prohibits making available on the market as well as the use of anti-fouling paints containing cybutryne in all EU Member States and EEA States. Therefore, the amendments to the Anti-fouling Systems Convention will affect Regulation (EU) 528/2012.
The amendments to the STCW Code Part A would affect EU law through the application of Directive 2008/106/EC.
The amendments to the ESP Code would affect EU law through the application of Regulation (EU) 530/2012.
The amendments to the International Code for Fire Safety Systems (FSS Code) would affect EU law through the application of Article 6(2)(a)(i) of Directive 2009/45/EC.
The amendments to the International Convention on the Control of Harmful Anti-fouling Systems on Ships would affect EU law through the application of Regulation (EU) 528/2012.
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. 6
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’. 7
The IMO’s Maritime Safety Committee and Marine Environment Protection Committee are bodies set up by an agreement, the Convention on the International Maritime Organization.
The acts which these two IMO committees 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, namely:
–Directive (EU) 2008/106 of the European Parliament and of the Council of 19 November 2008 on the minimum level of training of seafarers. This is because the Directive applies Part A of the STCW Code.
–Regulation (EU) No 530/2012 of the European Parliament and of the Council of 13 June 2012 on the accelerated phasing-in of double-hull or equivalent design requirements for single-hull oil tankers. This is because the Regulation make mandatory the application of the IMO's Condition Assessment Scheme (CAS) to single hull oil tankers above 15 years of age. The Enhanced Programme of Inspections during surveys of Bulk Carriers and Oil tankers or Enhanced Survey Programme (ESP) specifies how to undertake this intensified assessment. As CAS uses ESP as the tool to achieve its aim, any changes to the ESP inspections will automatically be applicable through Regulation (EU) No 530/2012.
–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. The FSS Code is made mandatory through the SOLAS Convention.
–Regulation (EU) 528/2012 of the European Parliament and of the Council of 22 May 2012 concerning the making available on the market and use of biocidal products. This is because the Regulation prohibits making available on the market as well as the use of anti-fouling paints containing cybutryne in all EU Member States and EEA States.
–the International Convention on Standards of Training, Certification and Watchkeeping for Seafarers
–the International Code on the enhanced programme of inspections during surveys of Bulk carriers and Oil tankers
–the International Code for Fire Safety Systems (FSS Code),
–the International Convention on the Control of Harmful Anti-fouling Systems on Ships
would affect EU law through the application of Directive (EU) 2008/106 of the European Parliament and of the Council of 19 November 2008 on the minimum level of training of seafarers; Regulation (EU) No 530/2012 of the European Parliament and of the Council of 13 June 2012 on the accelerated phasing-in of double-hull or equivalent design requirements for single-hull oil tankers; Directive 2009/45/EC of the European Parliament and of the Council of 6 May 2009 on safety rules and standards for passenger ships; and Regulation (EU) 528/2012 of the European Parliament and of the Council of 22 May 2012 concerning the making available on the market and use of biocidal products, respectively.
The envisaged acts do 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.