Explanatory Memorandum to COM(2023)270 - Amendment of Directive 2009/18/EC establishing the fundamental principles governing the investigation of accidents in the maritime transport sector

Please note

This page contains a limited version of this dossier in the EU Monitor.

dossier COM(2023)270 - Amendment of Directive 2009/18/EC establishing the fundamental principles governing the investigation of accidents in the ...
source COM(2023)270 EN
date 01-06-2023
1.CONTEXT OF THE PROPOSAL

•Reasons for and objectives of the proposal

This proposal concerns a modification of Directive 2009/18/EC of the European Parliament and of the Council of 23 April 2009 establishing the fundamental principles governing the investigation of accidents in the maritime transport sector and amending Council Directive 1999/35/EC and Directive 2002/59/EC of the European Parliament and of the Council 1 .

Directive 2009/18/EC (hereinafter the Directive) provides for a system of safety investigations to learn lessons from maritime accidents and to prevent their reoccurrence. Maritime accidents falling within the scope of the Directive are investigated to improve maritime safety and to protect the marine environment.

As part of its regulatory fitness and performance programme (REFIT) and better regulation agenda, the Commission carried out an ex-post evaluation 2 and maritime transport fitness check 3 in 2018. These concluded that, even though the Directive has largely achieved its objectives and provided EU added value, it requires updating and some improvement. The general objective of the revision of the Directive is to improve maritime safety and the protection of the marine environment. The current EU regulatory framework should be updated in order to (i) maintain EU rules where necessary and proportionate; (ii) ensure their correct implementation; and (iii) eliminate any potential overlap of obligations and inconsistencies between related pieces of legislation. The overarching objective is to provide for a clear, simple and up-to-date legal framework that increases the overall level of safety.

For ships engaged in international voyages, which include voyages between Member States, international conventions and certain EU rules apply. The obligation to investigate marine casualties or navigation incidents finds its origin in the United Nations Convention on the Law of the Sea 4 (UNCLOS) that imposes an obligation on the flag State to conduct an investigation.

The International Maritime Organization (IMO) subsequently developed the Casualty Investigation Code 5 . The Code requires a safety investigation to be conducted into casualties involving the total loss of the ship or a death or severe damage to the environment. It also recommends that investigations be carried out into other marine casualties and incidents, by the flag State of a ship involved, if it is considered likely that it would provide information that could be used to prevent future accidents.

EU action in the field of maritime safety both complements and implements the international framework. The transposition of IMO rules into the EU legal system makes these provisions actionable before the European Court of Justice ensuring their uniform enforcement across the EU.

The Directive goes further than the IMO Casualty Code by obliging Member States to set up independent accident investigation bodies (‘AIBs’) and to stipulate in their national legislation that these AIBs are notified of marine casualties and incidents 6 . The AIBs should investigate accidents depending upon their severity, with “very serious marine casualties” 7 requiring an obligatory investigation. The types of vessels covered by the Directive is broader than that covered by the IMO text including fishing vessels of 15 metres in length and over and also pleasure yachts and pleasure craft in certain circumstances. The Directive also provides that a common methodology be followed in the conduct of investigations and specifies the conditions for carrying out parallel/joint investigations. The Directive requires AIBs to publish reports on the investigations carried out (safety investigation reports). They should also notify the Commission of marine casualties and incidents via a database (the European Marine Casualty Information Platform – EMCIP), established and maintained by the European Maritime Safety Agency 8 (EMSA) for this purpose.

The 2018 REFIT and maritime transport fitness check underlined the need to ensure consistency in the regulatory framework across Member States and the effective enforcement of international obligations in a uniform and harmonised way. Shortcomings in the current Directive and its implementation by Member States due to challenges with resources, staffing and expertise were widely reported as problematic.

Apart from the need to update the Directive to take account of legal, environmental and technological changes that have occurred in the time since its adoption, taking account of lessons learnt in its implementation is also necessary. In the ex post evaluation, the non-applicability of the maritime safety acquis to a certain category of vessels (fishing vessels) operating in EU waters and the significant safety concerns for this vessel type were also raised.

Considering the results of the ex-post evaluation and the Maritime Transport Fitness Check, and with the general objective of improving safety and environmental protection while simplifying the EU regulatory framework and helping Member States fulfil their international and EU regulatory responsibilities, a proposal to amend Directive 2009/18/EC has been prepared. The specific objectives of its revision are:

–The protection of fishing vessels, their crew and the environment. Smaller fishing vessels of less than 15 metres in length are not included within the current scope of the Directive, meaning that accidents involving fatalities and loss of vessels are not investigated in a systematic and harmonised way across the European Union.

–To clarify definitions and the legal text so that Member States accident investigation bodies investigate all accidents that need to be investigated in a timely and harmonised manner.

–To enhance the capacity of AIBs to conduct (and report on) accident investigations in a timely, expert and independent manner - including on renewable and low carbon fuels and technologies.

–To update a number of definitions and references to relevant EU legislation and IMO Regulations in order to ensure clarity and consistency.

•Consistency with existing policy provisions in the policy area

The proposal is fully consistent with Directive 2009/16/EC 9 on port State control and Directive 2009/21/EC 10 on flag State requirements. The three Directives - which are all being amended at the same time - must be coherent with each other and any proposed change to one must take into account the other two Directives and the broader international regulatory environment. The lesson learnt from safety investigations and the safety recommendations emanating therefrom can help flag States and the recognised organisations that act on their behalf to improve the safety profile of the vessels under their responsibility.

•Consistency with other EU policies

The proposal forms part of the Commission's REFIT programme and delivers on its Better Regulation agenda by ensuring that the existing legislation is simple and clear, does not create unnecessary burden and keeps pace with evolving political, societal and technological developments. This proposal for an amendment as well as those for the other maritime safety Directives are also part of and have significant interaction with the larger maritime safety acquis which includes elements such as the EU vessel traffic monitoring and information system (SafeSeaNet) 11 , the EMSA founding Regulation 12 , the fishing vessel safety Directive 13 , the EU legislation relating to Recognised Organisations 14 , the Marine Strategy Framework Directive 15 and other EU environmental legislation 16 .

This proposal is consistent with and contributes to the EU climate neutrality objective by 2050 as set out in Article 2(1) of Regulation (EU) 2021/1119 17 of the European Parliament and of the Council which establishes the EU framework for achieving climate neutrality.

2.

2.LEGAL BASIS, SUBSIDIARITY AND PROPORTIONALITY


•Legal basis

The legal basis of the Amending Directive is Article 100(2) TFEU which provides for measures to improve transport safety and for specific provisions for sea transport.

•Subsidiarity (for non-exclusive competence)

As international accident investigation instruments in the maritime transport sector are an exclusive EU competence according to Article 3(2) TFEU, the subsidiarity principle does not apply, either to those instruments or to EU rules implementing those agreements. Even if this were not the case, Member States acting individually would not be able to tackle all the identified problems and, if they were to do so, it would lead to fragmentation of legislation and potential distortion of the internal market. To avoid such a fragmented legal framework, there is a need for EU action.

All Member States are concerned by the Directive as flag States, coastal States or substantially interested States.

•Proportionality

The proposal has been prepared to keep pace with the latest international developments and to address the results of the REFIT exercises mentioned above. The Commission has also carried out an impact assessment to identify assess and evaluate alternative measures to achieve the same objectives.

The objective of the proposed amendment is to improve maritime safety. This will be achieved by investigating casualties and learning from them to prevent similar accidents from happening in the future. Extending the scope to cover certain types of accidents involving smaller fishing vessels is considered proportionate. The additional costs necessary for AIBs to investigate very serious marine casualties (VSMCs) involving fishing vessels of less than 15 metres seem to be limited, especially, when compared to the potential safety improvements. The amendment will ensure that the current high level of safety is not compromised and should improve safety in the fishing sector.

•Choice of the instrument

As only several amendments are to be done with respect to Directive 2009/18/EC, an amending Directive is the most appropriate legal instrument.

3.

3.RESULTS OF EX-POST EVALUATIONS, STAKEHOLDER CONSULTATIONS AND IMPACT ASSESSMENTS


•Ex-post evaluations/fitness checks of existing legislation

The fitness check showed that the key objectives of the Directive are being met overall and remain highly relevant. Without the Accident Investigation Directive, it is unlikely that the 16 AIBs established since 2009 would have been put in place. Indeed, before 2009 most States primarily conducted investigations for criminal prosecution purposes if they did so at all. The creation of AIBs has given a boost to accident investigations for safety reasons, with an emphasis on independence and the development of safety recommendations for accident prevention purposes. In addition, the evaluation concluded that the Directive provides a consistent framework for investigating maritime accidents and thus ensures that accident investigations are conducted in a uniform and harmonised way throughout the EU.

The obligatory nature of the Directive has led to a harmonised reporting of accidents and incidents, as a standard set of requirements has to be met. The overall conclusion of the evaluation based on the assessment of relevance, effectiveness, efficiency, coherence and EU added value was that the Directive has largely met expectations, achieving EU-wide benefits.

However, shortcomings in the current policy framework due to challenges with resources, staffing and expertise were widely reported as problematic.

•Stakeholder consultations

The main consultation activities included:

- Three rounds of interviews with EU-level representatives of key stakeholders organised by the consultant in charge of the external support study, running intermittently from February 2021 to November 2021, to gather specific information, particularly to support and refine the overall problem definition and possible policy options.

- A targeted stakeholder survey organised by the consultant in charge of the external support study, running from June to November 2021, to gather specific information, particularly to refine the problem definition, the baseline and, where possible the assessment of impacts of possible policy measures.

- Additional consultation activities organised by DG MOVE and the consultant in charge of the external support study to gather views from Member States and key stakeholders on the various policy measures, and also to validate the emerging and final results of the support study to the impact assessment aimed at quantifying the impacts. These activities took place during meetings of the EU Sectoral Social Dialogue Committee on maritime transport (16 April 2021, 23 September 2021 and 16 December 2021), the EU Sectoral Social Dialogue Committee on Sea Fisheries (29 January 2021, 8 March 2021 and 16 November 2021), the EU Sector Social Dialogue Committee on ports (19 November 2021), meetings of the Permanent Cooperation Framework of AIBs (10 March 2021, 18 June 2021, 29 August 2021, 22 September 2021 and 7 October 2021), an informal meeting of the EU/EEA Maritime Transport Directors (30 November 2021) and meetings of the of the EU Committee on Safe Seas and the Prevention of Pollution from Ships (17 May 2021 and 11 November 2021). A final validation workshop to validate the conclusions of the support study attended by Member State and industry representatives was also organised (20 January 2022).

- Considering the highly technical nature of the file, no open public consultation was carried out. However, the general public was offered the opportunity to provide any views on this initiative, via an announcement on DG MOVE’s webpage and a dedicated functional mailbox. One contribution was received from a shipowner association relating to accident investigation which welcomed the administrative burden reduction and possible support to AIBs from EMSA.

The information collected from stakeholders was key in allowing the Commission to refine the design of the policy options to assess their economic, social and environmental impacts, compare them and determine which option would be likely to maximise the benefits/costs ratio for society and ensure a more effective and efficient mechanism to investigate maritime accidents across the EU. Findings from those processes complemented the desk research carried out as part of the external support study.

•Collection and use of expertise

This review builds primarily on the data collected during the 2018 ex post evaluation and the maritime transport fitness check mentioned previously.

In addition to the data gathered and the consultation, the preparation of this proposal required input from technical and legal experts on the concrete formulation of technical definitions and clear legal drafting. This expertise was gathered within the Commission, EMSA and the Permanent Cooperation Framework of AIBs. Details are provided in the staff working document accompanying the proposal.

•Impact assessment

The proposal is based on the results of an impact assessment which was informed by a support study carried out by an external consultant having specific knowledge in this area.

The impact assessment examined various policy options for revising the Directive, based on the following guiding principles:

The need for alignment with international instruments and for clarity on problematic or ambiguous definitions;

The scope of EMSA support to the Member States in fulfilling their reporting and investigation obligations under the Directive and international law;

The potential for addressing the specific problem of accidents involving smaller fishing vessels.

These principles are reflected in the policy objectives described below.

Option A proposes several changes to the Directive to improve maritime safety and pollution prevention. Under this option the scope would remain the same and the accident investigation bodies (now renamed ‘marine safety investigation Authorities’ in line with the IMO terminology) would continue to have the flexibility they currently have. On the issue of fishing vessels, this option proposes a non-regulatory measure whereby Member States will be recommended to report on VSMCs. This policy option along with all the others requires a quality management system (QMS) to be put in place to assure each investigation authority’s effective management of resources and the accuracy of safety investigation reports.

Option B seeks to balance greater harmonisation by means of more clearly stated definitions with a limited additional requirement for smaller fishing vessels. On fishing vessels, the Directive would be amended to oblige Member States to report all fatalities and vessel losses involving fishing vessels of less than 15 metres to the EMCIP. The alignment and clarification issues would be addressed by amending the Directive. On assisting Member State investigation authorities with conducting (and reporting on) accident investigations, the supporting role of EMSA is not enlarged beyond what is currently provided for in the existing legislation. The reporting burden on investigation authorities is somewhat lessened by broadening the range of competent authorities that can report to the database.

Option C is the most ambitious in terms of increased administrative and investigatory requirements for the investigation authorities. On fishing vessels, this option will oblige investigation authorities not only to report on fatalities and vessel losses of smaller fishing vessels but also to carry out at least a preliminary assessment to determine if lessons can be learnt and if a full investigation needs to be carried out. The impact assessment concluded that the most effective and hence the preferred policy option is Option C. Although option C has the highest additional costs, when considering costs versus benefits, Option C will have the greatest impact in terms of improving maritime safety.

This proposal is accompanied by an impact assessment report 18 , a draft of which was submitted to the Regulatory Scrutiny Board (RSB) in April 2022. The RSB issued a positive opinion and the impact assessment report was revised in line with the RSB recommendations, the RSB comments are addressed in the staff working document which accompanies this legislative proposal.

• Application of the ‘one in, one out’ approach

No additional administrative costs for businesses or citizens are expected.

• Regulatory fitness and simplification

The initiative has a REFIT dimension in terms of alignment and simplification of safety legislation, of improving the safety profile in particular of the small fishing vessel segment and of assisting Member State AIBs in fulfilling their reporting and investigative functions.

In addition, the preferred policy option includes elements of simplification as it will increase the efficiency of the national AIBs by providing clarity on when they need to carry out investigations, AIBs will no longer have to carry out preliminary assessment of serious casualties and the AIBs can delegate to other competent authorities the possibility to input data to the EMCIP database. EMSA’s provision of top-up assistance to those AIBs that request operational support should also improve the quality and quantity of investigations carried out as well as increase their harmonisation and standardisation across the EU.

• Fundamental rights

The proposal has no consequences for the protection of fundamental rights.

Contents

1.

BUDGETARY IMPLICATIONS



The estimated additional annual costs for the EU budget amount to around EUR 1.88 million per annum in 2030 and EUR 1.93 million per annum in 2050. The budget impact of the proposal is described in more detail in the Legislative Financial Statement annexed to this proposal for information. The budget impact of the proposal is already included in the Commission’s Proposal for a Regulation of the European Parliament and of the Council on the European Maritime Safety Agency and repealing Regulation (EC) No 1406/2002.

The budget impact beyond the current MFF is an indicative overview, without prejudice to the future MFF Agreement.

4.

5.OTHER ELEMENTS


•Monitoring, evaluation and reporting arrangements

Adequate monitoring and reporting arrangements have been identified. EMSA plays an important role in this process, as the Agency is in charge of the development and operation of electronic data systems for maritime transport.

The implementation can be monitored by means of Commission and/or EMSA monitoring of EMCIP database to verify that investigations are being carried out in a timely and effective manner and that the marine casualty or incident notification data as provided for in Annex II of the Directive and the safety investigation reports are uploaded to the database. EMSA also carries out cycles of visits to Member States to verify operations on the ground as part of EMSA’s support role to the Commission 19 . Member States will have to have a quality management system (QMS) to certify its organisation, policies, processes, resources and documentation are appropriate to achieve its objectives. This will have to be certified and subsequently subject to periodic audit. Investigation authorities will have to share with Commission/EMSA the results of the annual audits carried out by the accredited body such that the investigation authority can retain its QMS certification.

Given that the full cycle of envisaged EMSA implementation visits is scheduled to last 5 years 20 , it is proposed that the evaluation cycle of the Directive is set at ten-year intervals.

•Explanatory documents (for directives)

Explanatory documents are not required as the proposal aims to simplify and clarify the existing regime.

•Detailed explanation of the specific provisions of the proposal

5.

Article 1 of the draft amending Directive forms its main part and contains amendments to numerous provisions of Directive 2009/18/EC.


Compliance with IMO Casualty Investigation Code

A number of definitions and references are updated to take account of changes in the international regulatory environment. Specifically, the reference to the IMO Casualty Investigation Code is updated, a number of definitions found in Article 3 of the Directive which are to be understood in accordance with the definitions contained in the IMO Casualty Investigation Code are also updated and the reference to serious casualty which has been removed from the IMO Casualty Code and referred to in Article 3(3) is deleted. Several other changes are made in the legal provisions following the IMO Casualty Code in particular the change of the title of the “investigative body” to “marine safety investigation Authority”.

The substantive changes to the directive are set out herebelow.

6.

Purpose and scope


In point 2, Article 2 (d) is deleted, the scope of the Directive is hereby partially extended to all fishing vessels including those of less than 15 meters in length.

7.

Definitions


Point 3 also update a number of definitions which have been problematic or refer to outdated EU legislation. Firstly, the references to ‘ro-ro ferry’ and ‘high-speed passenger craft’ are updated to take account in changes in EU legislation, the length of a fishing vessel is specified as the length overall in accordance with Article 2 of Regulation (EU) 2017/1130. The issue of non-fatal injury which subsequently results in death some time after the marine occurrence which caused it is also addressed. To provide clear guidance until when an investigation should be started and thereby ensure a harmonised approach across the Union, the Directive is amended to include a clear deadline (i.e. 30 days after the accident occurred, as in other transport modes).

8.

Obligation to investigate and investigation Authorities


Point 5 makes changes to the obligation to investigate and provides that, in relation to a very serious marine casualty (loss of the vessel and/or a fatality) involving a fishing vessel of less than 15 metres in length, Member States are obliged to at least carry out a preliminary assessment to determine if a safety investigation should be carried out.

Furthermore, as the concept of a serious casualty has been abolished at IMO level, the attendant obligation to carry out a preliminary assessment of such casualties required by the Directive is also abolished. Finally, the Directive is amended to provide guidance in relation to accidents which take place involving ships in port.

Point 8 provides that Member States must establish a quality management system (QMS) for their marine safety investigation Authority. This measure should improve the quality of the accident investigations, the management of available resources having regard to the workload and especially the reports written. A similar obligation exists in relation to the Flag State administration under Article 8(1) of Directive 2009/21/EC on flag state requirements.

9.

European database for marine casualties


Point 14 relates to the reporting obligations of Member States as regards the European Maritime Casualty Information Platform (EMCIP). There are two changes, firstly it specifies their obligations regarding VSMCs involving fishing vessels of less than 15 metres in length. Secondly, the Directive is adapted so that all marine casualties and incidents other than VSMCs can be notified to EMCIP by a duly designated competent authority of a Member State other than the marine safety investigation Authority. Currently only the marine safety investigation Authority can notify to EMCIP and this is seen as a resource burden by some Member States. In addition, EMSA and the Commission should be able to input data to the EMCIP database. This will free up the investigation authorities to concentrate on their investigative functions and make allowance for the fact that investigation authorities do not always have access to this kind of data management, as the relevant statistics are collected, used and managed by other competent authorities in the same Member State.

10.

Support and training by EMSA


Point 15 sets out the possibilities for EMSA to provide support to the EU Member States investigation authorities to better discharge their responsibilities under the Directive. Many AIBs lack sufficient resources to have an expert on every specialised discipline. On the basis of this provision EMSA could make available a pool of experts of different disciplines who could be of service to any requesting investigation authority. Similarly, specialised equipment can be very expensive and most AIBs do not have the budget to own such equipment outright. Therefore EMSA could provide specialised tools and equipment, which can be lent or provided to the investigation authorities. This way, the equipment can be centrally sourced instead of every investigation authority having to act. This would provide for Union wide economies of scale.

As regards training EMSA could take a role in raising awareness of developments, disseminating information, and organising discussions and training courses on subjects such as renewable and low carbon fuels, new digital technologies and relevant developments at the IMO level. In addition, EMSA could provide dedicated training on the use of investigative technologies, equipment and on new technologies relating to the developments in maritime transport.

11.

Amending powers


Point 17 states that while the reference to the IMO Casualty Code refers to the most up to date version this is however subject to the standard non-regression clause. This means that if there are changes at the international level, the standards in the EU instrument are at least maintained at the current level.

12.

Implementation review and repeal of other EU legislation


Point 18 provides that the Commission will produce a review of the implementation of the amended Directive 10 years after adoption, this takes account of the time necessary for transposition and the fact that an EMSA review cycle of visits to Member States typically takes no less than 5 years.

Point 19 provides for the repeal of Commission Regulation (EU) No 1286/2011 of 9 December 2011 adopting a common methodology for investigating marine casualties and incidents. The IMO adopted Guidelines to assist investigators in the implementation of the Casualty Investigation Code (Resolution A.1075(28)) in 4 December 2013, which provide a detailed methodology for the investigation of marine casualties and incidents. There is therefore no longer a need for the common methodology set out in Commission Regulation (EU) No 1286/2011.