Considerations on COM(2023)271 - Amendment of Directive 2009/16/EC 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(2023)271 - Amendment of Directive 2009/16/EC on port State control. |
|---|---|
| document | COM(2023)271  |
| date | June 1, 2023 |
(2) Directive 2009/16/EC is based on the pre-existing voluntary intergovernmental structure of the Paris Memorandum of Understanding on port State control (Paris MOU) and the notions of a shared inspection burden, risk-based targeting of ships for inspections, harmonised inspections and the sharing of inspection results.
(3) Since the Directive 2009/16/EC entered into force, there have been changes in the international regulatory environment (in particular in the Paris MOU and the International Maritime Organisation) and technological developments. Those changes as well as the experience gained from implementation of Directive 2009/16/EC should be taken into account.
(4) A number of international conventions have entered into force and been ratified by the Member States since 2011. These are the International Convention for the Control and Management of Ships' Ballast Water and Sediments (BWM Convention) and the Nairobi International Convention on the Removal of Wrecks (Nairobi Convention). Therefore, they should be included in the list of the Conventions covered by Directive 2009/16/EC, to allow them to be enforced as a part the port State control system.
(5) To allow for an up to date and harmonised system of port State control it is necessary to have a swifter way to update the list of international conventions enforced by port State control without a need for amending the whole Directive. Therefore once an international Convention has entered into force – meaning that it has reached an agreed level of ratification - and following its adoption by the Members of the Paris MoU as a relevant instrument the list of Conventions in the Directive should be updated by the Commission.
(6) Due to their small size, most fishing vessels in the EU operate in territorial waters, and are not susceptible to being inspected in foreign ports. This means that in general, only larger fishing vessels above 24 meters in length (which are also the fishing vessels which are most subject to international conventions) are likely to engage in international waters and call at ports different than those in the country where they are registered and therefore be subject to PSC. As the majority of the international conventions applicable to larger fishing vessels are different to those which are currently enforced through port State control and to avoid undesirable spill over effects onto the current port state control system a parallel system of port state control for fishing vessels is being proposed.
(7) However, due to the patterns of fishing not all EU Member States are visited by these larger fishing vessels. Therefore, a voluntary system for those EU Member States that wish to carry out these inspections and which is separate from the current port state control regime is being proposed to allow for flexibility and the way that standards are developed in port State control. This system of port State control of fishing vessel of over 24 metres in length can therefore be developed organically by Member States, the Paris MoU and the Commission.
(8) The fair share mechanism provides a distribution of the inspection burden among the Member States of the Paris MOU. Each Member State is allocated a certain number of inspections – its inspection commitment or fair share - to be carried out each year. Eligibility for inspection is primarily determined by the length of time which has passed since the last inspection. Priority II ships may be inspected while Priority I vessels shall be inspected.
(9) Member States are permitted to miss a certain number of “Priority” inspections and still comply with their inspection commitment. However, for some Member States the number of ship calls that actually occur during a given year can either exceed or be less than the allocated inspection commitment. An alternative method of compliance to the fair share obligation for these (over-burdened or under-burdened) Member States was found to be inflexible, therefore it is necessary to align the provisions concerned with the revised Paris MOU provisions.
(10) Member States are also allowed to postpone inspections of ships under certain circumstances, provided that the vessel is inspected in the next port of call or within 15 days and this possibility is modified so that it can availed of by all Member States. Certain categories of vessels which are perceived to present a higher risk and which are therefore eligible for an expanded inspection are required to notify their estimated time of arrival to a port 72 hours in advance of their arrival. However after a number of years, it was concluded that this obligation was too burdensome on operators and added no value as the national authorities already have the information required more easily available in the THETIS database. On this basis the Paris MOU abolished this pre-arrival notification obligation therefore Directive 2009/16/EC should be aligned accordingly.
(11) Over the last decade and despite increases in the number of vessels calling to EU ports including the short sea shipping transport of goods between main ports in the EU Member States and ports situated in geographical Europe or in non-European countries on the Mediterranean and the Black Sea, the safety profile of vessels calling to EU ports has improved considerably. Port State control inspections are being increasingly used to enforce environmental legislation such as in relation to sulphur emissions or the safe and environmental scrapping of ships. The “Fit for 55 package” aims to reduce the EU’s total green-house gas emissions by 55% by 2030, paving the way to climate neutrality by 2050 and maritime transport is expected to contribute to this effort. However, the ship risk profile devised prior to 2009 had different priorities and is not fully adapted to focus the inspection effort on the least environmentally performing vessels.
(12) On this basis, the ship risk profile should be updated to reflect environmental issues by attaching more importance to the environmental performance, including the operational carbon intensity of the ships being inspected as well as to environmental related deficiencies and detentions.
(13) Digitalisation is an essential aspect of technological progress in the area of data collection and communication with a view to helping to bring down costs and making efficient use of human resources. The number of ships currently carrying electronic certificates is on the rise and expected to increase. Therefore the effectiveness of port State control should be enhanced by making more use of electronic certificates to allow for more ship focussed better prepared inspections. The uptake and use of these electronic certificates should be incentivised by their inclusion in the ship risk profile.
(14) Port State control has been increasing in complexity as new inspection requirements are added, either by EU law or via the International Maritime Organization. There is therefore a need to ensure the upskilling and reskilling of the port State control officers and continuously develop their training.
(15) Union Flag State administrations in line with Directive 2009/21/EC of the European Parliament and of the Council26 are required to have a quality management system in order to help Member States to further improve their performance as flag States and to ensure a level playing field between administrations. A similar requirement for the port state control activities should allow Member States to certify that their organisation, its policies, processes, resources and documentation are appropriate to achieve its objectives as well as identify system problems such as resource or personnel allocation issues before these become problematic.
(16) In order to allow for an up-to date application of the provisions of this Directive to allow Member States to fulfil their obligations under international law in compliance with the Directive, the power to adopt acts in accordance with Article 290 of the Treaty on the Functioning of the European Union should be delegated to the Commission in respect of updating the Conventions within the scope of Directive 2009/16/EC and amending the list of procedures and guidelines relating to port State control adopted by the Paris MOU. It is of particular importance that the Commission carry out appropriate consultations during its preparatory work, including at expert level, and that those consultations be conducted in accordance with the principles laid down in the Interinstitutional Agreement of 13 April 2016 on Better Law-Making27. In particular, to ensure equal participation in the preparation of delegated acts, the European Parliament and the Council receive all documents at the same time as Member States' experts, and their experts systematically have access to meetings of Commission expert groups dealing with the preparation of delegated acts.
(17) In order to ensure uniform conditions for the implementation of the provisions of Directive 2009/16/EC concerning the list of Conventions under its scope, the voluntary port state control regime for fishing vessels above 24 meters length overall, the conditions for the application of Annex VII on expanded inspection, the uniform set of safety and security guidelines and procedures, as well as the requirements for electronic certificates, implementing powers should be conferred on the Commission. Those powers should be exercised in accordance with Regulation (EU) No 182/2011 of the European Parliament and of the Council28.
(18) In order to improve the quality of port state control inspections in marine areas close to the EU all eligible Member States are encouraged to join the Mediterranean MoU on port State control (Med MOU).
(19) In view of the full monitoring cycle of visits to Member States by the European Maritime Safety Agency (EMSA) to monitor the implementation of Directive 2009/16/EC, the Commission should evaluate the implementation of Directive 2009/16/EC no later than [ten years after its date of application referred to in Article XX)] and report to the European Parliament and the Council thereon. Member States should cooperate with the Commission to gather all information necessary for this evaluation.
(20) Since the objectives of this Directive, cannot be sufficiently achieved by the Member States because of the international nature of maritime transport but can rather, by reason of the network effects of member States acting together, be better achieved at Union level, the Union may adopt measures, in accordance with the principle of subsidiarity as set out in Article 5 of the Treaty on European Union. In accordance with the principle of proportionality as set out in that Article, this Directive does not go beyond what is necessary in order to achieve those objectives.
(21) Directive 2009/16/EC should therefore be amended accordingly,