Proposal for a directive of the European Parliament and of the Council amending Directive 2009/21/EC on compliance with flag State requirements

15.3.2024

PROVISIONAL AGREEMENT RESULTING FROM INTERINSTITUTIONAL NEGOTIATIONS

Subject: Proposal for a directive of the European Parliament and of the Council amending Directive 2009/21/EC on compliance with flag State requirements

(COM(2023)0272 – C90188/2023 – 2023/0172(COD))

The interinstitutional negotiations on the aforementioned proposal for a directive have led to a compromise. In accordance with Rule 74(4) of the Rules of Procedure, the provisional agreement, reproduced below, is submitted as a whole to the Committee on Transport and Tourism for decision by way of a single vote.

2023/0172 (COD)

Proposal for a

DIRECTIVE OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL

amending Directive 2009/21/EC on compliance with flag State requirements

(Text with EEA relevance)

THE EUROPEAN PARLIAMENT AND THE COUNCIL OF THE EUROPEAN UNION,

Having regard to the Treaty on the Functioning of the European Union, and in particular Article 100(2) thereof,

Having regard to the proposal from the European Commission,

After transmission of the draft legislative act to the national parliaments,

Having regard to the opinion of the European Economic and Social Committee,

After consulting the Committee of the Regions,

Acting in accordance with the ordinary legislative procedure,

Whereas:

(1) The safety of Union shipping and of citizens using it and the protection of the environment should be ensured at all times.

(1a) It is important to take into account the on-board working and living conditions of the crew and the training and qualifications of crew members, in line with Directive 2013/54/EU and Directive 2022/993 of the European Parliament and of the Council, given that health, safety, security and the human factor are closely interlinked and that it is of utmost importance to prevent any damage caused by human error.

(2) Under the provisions of the 1982 United Nations Convention on the Law of the Sea (UNCLOS) and of the Conventions for which the International Maritime Organization (IMO) is the depository, the States which are party to those instruments are responsible for adopting laws and regulations and for taking all other measures which may be necessary to give those instruments full effect so as to ensure that, in terms of safety of life at sea and the protection of the marine environment, a ship is fit for the service for which it is intended.

(3) To ensure the effectiveness of the IMO Conventions in the Union, all Member States should take the necessary measures to discharge the obligations laid down in those conventions with respect to ships flying their flag. To that end, Member States should discharge their obligations as flag States effectively and consistently in accordance with IMO Resolution A.1070(28) on the IMO Instruments Implementation Code (III Code), adopted on 4 December 2013, which contains the mandatory provisions to be implemented by flag States. In accordance with Article 91(1) of UNCLOS, there must be a genuine link between a vessel and its flag State, as interpreted by international jurisprudence that is reflected in the duties of a flag State.

(3a) Without prejudice to provisions concerning force majeure laid down in the IMO Conventions, Member States should be able to, in crisis situations that may endanger the physical integrity of personnel responsible for or performing surveys, inspections, audits and verifications, introduce restrictions on such activities, while allowing ships to continue to operate.

(3b) The following international instruments in their latest versions refer to the application of the III Code: the International Convention for the Safety of Life at Sea, 1974; the International Convention for the Prevention of Pollution from Ships, 1973, as modified by the Protocol of 1978 relating thereto; the Protocol of 1997 to amend the International Convention for the Prevention of Pollution from Ships, 1973, as modified by the Protocol of 1978 relating thereto; the International Convention on Standards of Training, Certification and Watchkeeping, 1978; the International Convention on Load Lines, 1966, and the Protocol of 1988 relating thereto; the International Convention on Tonnage Measurement of Ships, 1969; and the Convention on the International Regulations for Preventing Collisions at Sea, 1972.

(3c) Flag State surveyors are those authorised by the competent authorities of the Member States to survey and certify ships. Such personnel may be assisted by other personnel, for instance those inspecting radio installations. However, such personnel should not include technicians involved in the servicing of life-saving appliances or surveyors that are not directly involved in the survey of the merchant shipping fleet.

(3d) Section 22 of the III Code states that a flag State should take all necessary measures to ensure compliance with international rules and standards by ships entitled to fly its flag and by entities and persons under its jurisdiction, so as to ensure compliance with its international obligations. In particular, section 22.2 refers to inspections to verify that the actual condition of the ship and its crew is in conformity with the certificates it carries. The periodicity of such inspections should be established by the Member States either by using a risk-based approach or by using their own procedures and instructions, including quantitative or qualitative criteria.

(4) -

(5) At international level, the responsibility to investigate maritime accidents falls on the flag State, while at Union level the fundamental principles governing the investigation of maritime accidents, such as the independence of the investigative bodies in the Member States, are regulated by Directive 2009/18/EC of the European Parliament and of the Council. This Directive should not affect Directive 2009/18/EC.

(6) -

(7) The administrations of the Member States should be able to rely on adequate resources for the implementation of their flag State obligations, according to the size and type of their fleet and based upon the relevant IMO requirements. Minimum criteria and inspection targets related to those resources should be established on the basis of the practical experience of the Member States, including the use of non-exclusive inspectors, in accordance with the IMO Instruments Implementation Code (A.1070(28)) (IMO III Code).

(7a) Without prejudice to the relevant national legislation, Member States may allow that flag State surveyors and inspectors who work exclusively for the competent authority of a Member State may carry out other work, such as scientific or academic activities, provided that it does not give rise to conflict of interest or impede their independence.

(8) -

(9) Flag State inspectors, surveyors and other personnel assisting in the performance of surveys should have the education, training and supervision necessary to carry out the tasks they are authorised to perform. The Commission, assisted by the European Maritime Safety Agency (EMSA), and in cooperation with Member States should develop a voluntary training programme to support flag State administrations in this respect and should facilitate coordination and exchange of information and good practices. Such training programme should be kept updated and take into account new or additional obligations arising from the instruments and Conventions, such as new technologies, social matters, as well as other relevant developments.

(10) -

(11) The establishment and development of a database providing essential information in electronic format on ships flying the flag of a Member State and ensuring the possibility of issuance of electronic certificates should contribute to an enhanced exchange of information among Member States. The development of a common and uniform database for issuance of electronic certificates, including the tools for checking the validity of those certificates, would facilitate and contribute to a tangible breakthrough towards maritime digitalization within the Union. It would support operational needs of its actors, in particular those Member States that have not been in a position to develop their own systems for electronic certificates, and also attend to a more efficient use of available limited resources.

(12) For monitoring and inspection purposes, essential information, such as the ship’s particulars, registered owner and ship’s certificates should be available to all authorities concerned and to the Commission.

(13) Member States should continue to demonstrate their compliance with the mandatory IMO instruments, as required by Resolution A 1067(28) in its up-to-date version on the framework and procedures for the IMO Member State Audit Scheme, adopted by the IMO Assembly on 4 December 2013.

(14) -

(15) In order to further enhance the quality of the flagged ships and to ensure a level playing field between maritime administrations of the Member States, a quality certification of administrative procedures, included in the quality management system in accordance with ISO or equivalent standards. It should cover the operational parts of the maritime administration related to survey, inspection, audit, verification and certification under the responsibility of the Member State as flag State, whether national (first registers) or international (second or overseas registers). Furthermore, all relevant activities, including the responsibilities, authority, interrelation, and means of reporting and communication of all flag State personnel performing or involved in surveys or inspections, as well as other personnel assisting in the performance of inspections, not exclusively employed by the competent authority of the Member State, and who may assist in carrying out inspections other than statutory surveys or flag State inspections, should be clarified. The quality management system should ensure that the tasks assigned to recognised organisations under the scope of this Directive should comply with the flag State’s instructions, and should include the necessary control measures in that respect. In order to ensure their independence, Member States should take appropriate measures to prevent conflicts of interest of involved personnel in relation to the work they are to perform.

(15a) In coordination with the International Labour Organisation (ILO), the Commission and the Member States are encouraged to continue to advocate for the improvement of seafarers’ working and living conditions.

(16) -

(17) -

(18) An electronic reporting tool for the purposes of further improving the consistent collection of relevant statistics and maritime data and information from Member States, should be established.

(19) -

(20) The measures necessary for the implementation of this Directive with regard to the ships information database should be adopted. In order to ensure uniform conditions for the implementation of Directive 2009/21/EC, 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 Council.

(20a) The Commission should set up a forum for Member State experts dealing with flag State matters, as well as other stakeholders, when necessary, to regularly exchange information and best practices and to develop guidance on issues such as procedures for ship inspections, training resources for inspectors, risk-based criteria that can be used to improve the effectiveness of inspections, the possible development of a common harmonised performance scheme, criteria for analysing flag State performance with a view to identifying best practices and any other issue relevant to the implementation of this Directive.

(20b) In order to avoid a disproportionate administrative burden in the transposition of this Directive, Member States may, as long as the conditions defined below are fulfilled, apply the following exemptions. The Member States which do not have ships flying their flag that fall within the scope of this Directive should not be obliged to transpose and implement Article 6 of this Directive as regards the sharing of information related to ships. The Member States which do not have ships flying their flag that fall within the scope of this Directive and have closed their register for these ships should not be obliged to transpose and implement this Directive.

(21) The European Maritime Safety Agency (EMSA) should provide support for the implementation of Directive 2009/21/EC, notably by providing relevant training for flag State inspectors and surveyors, if so requested by Member States.

(22) Since the objectives of this Directive, namely to enhance maritime safety and prevent pollution from ships, cannot be sufficiently achieved by the Member States but can rather, by reason of its scale or effects, 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.

(23) Directive 2009/21/EC should therefore be amended,

HAVE ADOPTED THIS DIRECTIVE:

Article 1

Amendments to Directive 2009/21/EC

Directive 2009/21/EC is amended as follows:

(-1) in Article 1(1), points (a) and (b) are replaced by the following:

(a) to ensure that Member States effectively and consistently discharge their responsibilities and obligations as flag States; and

(b) to enhance safety, working and living conditions, and to prevent pollution from ships flying the flag of a Member State.

(0) Article 2 is replaced by the following:

Article 2 Scope

This Directive shall apply to the administration of the State whose flag the ship is flying, for ships subject to certification and engaged in any type of international voyages.’;

(1) Article 3 is amended as follows:

(-a) point (a) is replaced by the following:

(a) ‘ship’ means a ship or craft flying the flag of a Member State falling within the scope of the Conventions and for which a certificate is required

(a) point (e) is replaced by the following:

‘(e) ‘IMO audit’ means an audit conducted in accordance with the provisions of Resolution A 1067(28) (“Framework and Procedures for the IMO Member State Audit”), in its up-to-date version, adopted by the International Maritime Organisation (IMO);’

(b) the following points are added:

‘(f) Conventions’ means the Conventions, with the Protocols and amendments thereto making the use of the III Code mandatory, and the related codes of mandatory status, in their up-to-date version;

(g) ‘III Code’ means Resolution A.1070(28) (IMO Instruments Implementation Code), adopted by the International Maritime Organization (IMO), Part 2, with the exception of paragraphs 16, 18, 19, 20.3, 21, 29, 30, 31, 32, 34, 38, 39, 40 and 41, in its up to date version;

(h) ‘flag State surveyor’ means a public sector employee, duly authorised by and working exclusively for the competent authority of a Member State, responsible for or performing surveys, verifications and audits of ships and companies covered by the relevant international mandatory instruments and fulfilling the independence requirement laid down in Article 8(1);

(i) ‘flag State inspector’ means:

(i) a public sector employee, working exclusively for and duly authorised by the competent authority of a Member State; or

(ii) a person non-exclusively employed and duly authorised by the competent authority of a Member State, on an ad hoc basis or in a contractual situation with the competent authority of the Member State,

who may carry out flag State inspections, and fulfils the qualification and independence requirements laid down in Article 8(1);

(j) ‘other personnel assisting in the performance of surveys’ means persons duly authorised by the competent authority of the Member State or by a recognised organisation acting on its behalf, who may assist flag State surveyors when carrying out surveys, as specified by the competent authority, and who fulfil the criteria of communication, qualification and independence laid down in Article 8(1);

(k) ‘flag State inspection’ means an inspection, not leading to certification, conducted to verify that the actual condition of the ship and its crew is in conformity with the certificates it carries

’

(2) In article 4, paragraph 1 is replaced by the following:

‘1. Prior to allowing a ship which has been granted the right to fly its flag to operate, the Member State concerned shall ensure that the ship in question complies with the applicable international rules and regulations, including safety, social and environmental standards. Those measures may be taken by a recognised organisation, acting on behalf of the Member State, when duly authorised by the competent authority. In particular, it shall verify the safety records of the ship using, where available, the inspection reports and certificates contained in its own database or, as applicable, in the ship information database referred to in Article 6a for Member States that have opted for it. It shall, if necessary, consult with the losing flag State in order to establish whether any outstanding deficiencies or safety issues identified by the latter remain unresolved.’

(3) the following Articles are inserted:

‘ Article 4a

Safety of ships flying the flag of a Member State

1. In respect of international shipping, Member States shall apply in full the mandatory flag State-related provisions laid down in the Conventions in accordance with the conditions laid down, and in respect of the ships referred to, therein.

2. Member States shall take all necessary measures to ensure compliance with international rules, regulations and standards related to the Conventions by ships entitled to fly their flag, including the following:

(a) ensuring that a surveyor employed by a recognised organisation may perform the same tasks as flag State surveyors when so authorised by the competent authority of the Member State; and

(c) carrying out flag State inspections to verify that the actual condition of the ship is in conformity with the certificates it carries; such inspections may be carried out using a risk-based approach, which shall include the following criteria:

(i) records of deficiencies and non-conformities from statutory surveys, audits and verifications performed by the flag State;

(ii) relevant accident investigation reports

(iii) detentions or prohibition of operation notices issued by a port State control authority

(iv) exceeding a port State control deficiency ratio established by each Member State

(v) records of deficiencies from inspections carried out according to national legislation as deemed appropriate by each Member State.

(vi) other relevant information deemed necessary by the Member State

Member States using a risk-based approach shall ensure that ships for which there is no sufficient data available for the calculation of the risk rating are inspected at least once every 5 years.

Member States not using a risk-based approach shall carry out flag State inspections using their own procedures, instructions and relevant information in compliance with the III Code. They shall ensure that every ship is inspected at least once every 5 years.

3. Member States shall ensure that any deficiencies requiring corrective measures, including safety, environmental and social concerns, confirmed or revealed by an inspection carried out in accordance with paragraph 2(c) are rectified within an appropriate timeframe, as determined by the flag State.

4. On completion of a flag State inspection, the flag State inspector shall draw up a report on the outcome of this task.

‘Article 4b

Safety and pollution prevention requirements

1. Each Member State shall ensure that appropriate resources, according to the size and type of its fleet and with respect to the implementation of the administrative processes, procedures and resources necessary, in particular, for meeting the obligations provided for in Article 4a and paragraphs 2 and 3 of this Article, are available to its administration.

2. Each Member State shall ensure the oversight of the activities of flag State surveyors, flag State inspectors and other personnel assisting in the performance of surveys, and recognised organisations.

3. Each Member State shall ensure that a design review and technical decision-making capability according to the size and type of its fleet, are developed or maintained.

4. -

‘Article 4c

Training and capacity building

1. The personnel responsible for or performing surveys, inspections, audits and verifications of ships and companies shall undergo training relevant to the specific activities carried out.

2. Member States may develop a capacity-building scheme for their flag State inspectors and surveyors and keep it up to date, taking into account new or additional obligations arising from the Conventions.

3. The Commission, with the assistance of EMSA and in cooperation with Member States, shall organise, where appropriate and based on Member States’ demands for support, relevant training activities for flag State inspectors and surveyors.’

(4) Article 5 is amended as follows:

(a) the sole paragraph is numbered as paragraph 1.

(b) the following paragraph 2 is added:

‘2. . Member States shall develop and implement an appropriate control and monitoring programme in order to provide a timely response to the situations referred to in paragraph 1.;’

(5) Article 6 is replaced by the following:

‘ Article 6

Electronic information and exchange

1. Member States shall ensure that the following information concerning ships flying their flag is made available in electronic format in its up to date version at the latest six years after the entry into force of this amending Directive:

(b) statutory certificates (full or interim) including dates of surveys, additional and supplementary surveys, if any, and audits;

(f) identification of ships which have ceased to fly the flag of the Member State concerned during the previous 12 months

2. The Commission shall develop, maintain and update a digital interoperable portal providing for a single point of access for the information in paragraph 1 and allowing Member States’ flag and port State inspectors to access this information in the performance of their duties. The Commission shall make that portal electronically accessible and free of charge for Member States. That portal shall not contain personal data or confidential information. The Commission shall ensure the interoperability of the portal with the ship information database referred to in Article 6a. This digital portal shall be established [three] years from the date of entry into force of this amending Directive, at the latest.

2a. The Commission shall adopt implementing acts to define the technical functioning of the digital portal referred to in paragraph 2 of this Article. Those implementing acts shall be adopted in accordance with the examination procedure referred to in Article 10(2).’

(6) The following Article is inserted:

‘ Article 6a

Ships information database

1. The Commission shall develop, maintain and update a ships information database containing the information referred to in Article 6 and providing services for Member States on issuing and controlling of electronic certificates. The ships information database shall be established [five] years from the date of entry into force of this amending Directive, at the latest. Member States may connect to that database. That database may be based on the database referred to in Article 24 of Directive 2009/16/EC and may have similar functionalities to that database.

2. Without prejudice to national data protection requirements, Member States opting to use the ships information database:

b) may transfer to the ships information database information related to inspections carried out in accordance with this Directive, including information concerning deficiencies and certificates; and

c) may use this database to issue, sign, endorse, extend and withdraw electronic certificates for their ships,

d) ensuring that the information is compatible and interoperable.

3. The Commission shall ensure that the ships information database makes it possible to retrieve relevant data concerning the implementation of this Directive based on inspection data provided by Member States.

4. Member States that have opted to use the database shall have access to all the information recorded in the ships information database referred to in paragraph 2 of this Article and the inspection system provided for in Directive 2009/16/EC. Nothing in this Directive shall prevent the sharing of such information between relevant competent authorities, within and between Member States, with the Commission, or with the European Maritime Safety Agency (EMSA) established by Regulation (EC) No 1406/2002 of the European Parliament and of the Council.

5a. The Commission shall adopt implementing acts to define the technical functioning of the database referred to in Article 6a. Member States communicating information in accordance with paragraph 2 of this Article shall have access to the database information submitted, under the conditions defined in those implementing acts. Those implementing acts shall be adopted in accordance with the examination procedure referred to in Article 10(2).

(7) Article 7 is replaced by the following:

‘ Article 7

Monitoring of compliance and performance of Member States

1. Member States shall take the necessary measures to undergo the IMO audit of their administration according to the cycle adopted at the IMO. Member States shall publish the outcome of the audit, in accordance with relevant national legislation on confidentiality.

3. In order to ensure the effective implementation of this Directive and to monitor the overall functioning of flag State compliance with the Administration legal duties pursuant to this Directive, the Commission shall collect the necessary information when carrying out visits to Member States.;’

(8) Article 8 is amended as follows:

(a) paragraph 1 is replaced by the following:

‘ Each Member State shall implement and maintain a quality management system covering the operational parts of the flag State-related activities of its administration. Such quality management system shall be certified in accordance with applicable international quality standards such as ISO 9001 standards.

The quality management system shall include defined responsibilities, authority and interrelation of personnel performing surveys, inspections, audits and verifications and the flag State personnel who manage, perform and verify work relating to and affecting the flag State obligations . Such responsibilities shall be documented, specifying the type and scope of inspection work that may also be performed by non-exclusively employed flag State inspectors, and how such personnel shall communicate and report. The quality management system shall indicate the tasks that can be carried out by other personnel assisting in the performance of surveys.

Each Member State shall ensure that flag State inspectors non-exclusively employed, and other personnel assisting in the performance of surveys, have education, training and supervision commensurate with the tasks they are authorised to perform, and that they are able to apply flag State instructions, procedures and criteria.

Member States shall take appropriate measures to prevent conflicts of interests of all personnel performing a survey, verification or inspection and regarding independence in relation to the work to be performed.

Three years after the date of transposition of this Directive, the quality management system shall cover the aspects related to this Article.

(a2) paragraph 2 is replaced by the following:

Member States which appear on the low performance list or which appear, for two consecutive years, on the medium performance list as published in the most recent annual report of the Paris Memorandum of Understanding on Port State Control (hereinafter the ‘Paris MOU’) shall provide the Commission with a report on their flag State performance no later than four months after the publication of the Paris MOU report.

The report shall identify and analyse the main reasons that led to the detentions and the deficiencies resulting in a low or medium performance status.;’

(9) Article 9 is replaced by the following:

Article 9 Reports and Review

Every five years, and for the first time by [three years from the date of entry into force of this amending Directive] the Commission shall present a report to the European Parliament and to the Council on the application of this Directive.

(10) The following new Articles are inserted:

‘ Article 9a

Exchange of best practice and experience

1. The Commission shall provide for the organisation of exchange of experiences and best practices between Member States’ national authorities and flag State experts and inspectors, including, as appropriate, other relevant stakeholders, for the implementation of this Directive.

Member States’ national authorities and flag State experts and inspectors shall explore, together with the Commission, the possibility to develop guidance on elements such as the methodology to perform flag State inspections, content and format of reporting or capacity building.

‘Article 9b

Information and data

The Commission shall establish an electronic reporting tool for the purposes of gathering information and data from the Member States in relation to this Directive. Member States shall inform the Commission once a year of the number of flag State inspections performed in accordance with Article 4a indicating, for each inspection, the IMO number of the ship, the date and the place.

(11) Article 10 is replaced by the following:

‘ Article 10

Committee procedure

1. The Commission shall be assisted by the Committee on Safe Seas and the Prevention of Pollution from Ships (COSS) established by Regulation (EC) No 2099/2002. That Committee shall be a committee within the meaning of Regulation (EU) No 182/2011.

2. Where reference is made to this paragraph, Article 5 of Regulation (EU) No 182/2011 shall apply.’

(12a) The following Article 10a is inserted:

‘ Article 10a

Amendments to the Conventions and III Code

Amendments to the Conventions and III Code defined in Article XX of this Directive may be excluded from the scope of this Directive, pursuant to Article 5 of Regulation (EC) No 2099/2002.’

(13a) in Article 11 the following paragraph is added:

3. By derogation from the first subparagraph of paragraph 1, a) the Member States which do not have ships flying their flag that fall within the scope of this Directive may derogate from the obligation to transpose and implement Article 6 of this Directive as long as this condition is fulfilled. b) the Member States which do not have ships that fall within the scope of this Directive and have closed their register for these ships may derogate from the obligation to transpose and implement this Directive as long this condition is fulfilled. Any Member State that intends to avail itself of one of these derogations shall notify the Commission by [date of transposition]. Any subsequent change shall also be communicated to the Commission.

Those Member States may not allow ships falling within the scope of this Directive to fly their flag nor register such ships in their national registry until they have completely transposed and implemented this Directive.’

Article 2

Transposition

1. Member States shall adopt and publish, by … [OP: Please insert a date: 30 months from the date of entry into force of this amending Directive] the laws, regulations and administrative provisions necessary to comply with this Directive. They shall immediately inform the Commission thereof.

When Member States adopt those measures, they shall contain a reference to this Directive or shall be accompanied by such reference on the occasion of their official publication. The methods of making such reference shall be laid down by Member States.

Article 3

Entry into force

This Directive shall enter into force on the twentieth day following that of its publication in the Official Journal of the European Union.

Article 4

Addressees

This Directive is addressed to the Member States.

Done at Brussels,

For the European Parliament For the Council

The President The President