THE EUROPEAN PARLIAMENT AND THE COUNCIL OF THE EUROPEAN UNION,
Having regard to the Treaty establishing the European Community, and in particular Article 80(2) thereof,
Having regard to the proposal from the Commission,
Having regard to the opinion of the European Economic and Social Committee,
Having regard to the opinion of the Committee of the Regions,
Acting in accordance with the procedure laid down in Article 251 of the Treaty, in the light of the joint text approved by the Conciliation Committee on 3 February 2009,
Whereas:
(1)
With the adoption of Directive 2002/59/EC of the European Parliament and of the Council, the European Union reinforced its capacity for preventing situations posing a threat to the safety of human life at sea and to the protection of the marine environment.
(2)
Since this Directive concerns the amendment of Directive 2002/59/EC, most of the obligations it contains will not be applicable to Member States without sea shores and sea ports. Consequently, the only obligations which will be applicable to Austria, the Czech Republic, Hungary, Luxembourg or Slovakia are those obligations concerning ships flying the flag of those Member States, without prejudice to Member States' duty of cooperation to ensure continuity between maritime and other modal traffic management services, in particular river information services.
(3)
Under this Directive Member States that are coastal States should be able to exchange information, which they gather in the course of maritime traffic monitoring missions, which they carry out in their areas of competence. The Community maritime information exchange system ‘SafeSeaNet’, developed by the Commission in agreement with the Member States, comprises, on the one hand, a data exchange network and, on the other hand, a standardisation of the main information available on ships and their cargo (advance notice and reporting). It thus makes it possible to locate at source and communicate to any authority accurate and up-to-date information on ships in European waters, their movements and their dangerous or polluting cargoes, as well as marine incidents.
(4)
Accordingly, in order to guarantee operational use of the information gathered in this way, it is essential that the infrastructure necessary for the data collection and exchange referred to in this Directive and implemented by the national administrations be integrated into the SafeSeaNet.
(5)
Of the information notified and exchanged pursuant to Directive 2002/59/EC, that concerning the precise characteristics of dangerous or polluting goods carried by sea is particularly important. Accordingly, and in the light of recent maritime accidents, coastal authorities should be allowed easier access to the characteristics of the hydrocarbons being carried by sea, an essential factor in choosing the most suitable control techniques, and, in an emergency, provided with a direct link with those operators who have the best knowledge of the goods being carried.
(6)
The automatic ship identification systems (AIS – Automatic Identification System) referred to in the International Convention for the Safety of Life at Sea of 1 November 1974 make it possible not only to improve the possibilities of monitoring these ships but above all to make them safer in close navigation situations. AIS have accordingly been integrated into the enacting terms of Directive 2002/59/EC. Considering the large number of collisions involving fishing vessels that have clearly not been seen by merchant ships or which have not seen the merchant ships around them, extension of that measure to include fishing vessels with a length of more than 15 metres is very much to be desired. In the framework of the European Fisheries Fund, financial assistance may be provided for the fitting on board of fishing vessels of safety equipment such as AIS. The International Maritime Organisation (IMO) has recognised that the publication for commercial purposes on the internet or elsewhere of AIS data transmitted by ships could be detrimental to the safety and security of ships and port facilities and has urged its member governments, subject to the provisions of their national laws, to discourage those who make AIS data available to others for publication on the internet or elsewhere from doing so. In addition, the confidentiality of information sent to Member States pursuant to this Directive should be ensured, and the Member States should use that information in compliance with this Directive.
(7)
The obligation to fit AIS should be understood also to require that AIS be maintained in operation at all times except where international rules or standards provide for the protection of navigational information.
(8)
A Member State which so requests should be entitled to seek information from another Member State regarding a ship and dangerous or polluting goods carried by it. This information should be available through SafeSeaNet and should only be requested for reasons of maritime safety or security or the protection of the marine environment. It is therefore essential that the Commission investigate possible network and information security problems.
(9)
Directive 2002/59/EC provides that Member States are to adopt special measures in respect of ships posing a potential hazard due to their behaviour or condition. It therefore seems desirable to add to the list of these ships those which do not have satisfactory insurance cover or financial guarantees or which have been reported by pilots or port authorities as having apparent anomalies which may prejudice their safe navigation or create a risk for the environment.
(10)
In accordance with Directive 2002/59/EC, it seems necessary, in relation to the risks posed by exceptionally bad weather, to take into account the potential danger to shipping from ice formation. Therefore, where a competent authority designated by a Member State considers, on the basis of an ice forecast provided by a qualified meteorological information service, that the sailing conditions are creating a serious threat to the safety of human life or a serious threat of pollution, it should so inform the masters of the ships present in its area of competence or intending to enter or leave the port or ports in the area concerned. The authority concerned should be able to take any appropriate steps to ensure the safety of human life at sea and to protect the environment. Member States should also have the possibility of verifying that the necessary documentation on board provides evidence that the ship complies with strength and power requirements commensurate with the ice situation in the area concerned.
(11)
Directive 2002/59/EC provides that Member States are to draw up plans to accommodate, if the situation so requires, ships in distress in their ports or in any other protected place in the best possible conditions, in order to limit the consequences of accidents at sea. However, taking into account the Guidelines on Places of Refuge for Ships in Need of Assistance annexed to Resolution A.949(23) of the International Maritime Organisation of 13 December 2003 (IMO Resolution A.949(23)), which were adopted subsequently to Directive 2002/59/EC and refer to ships in need of assistance, rather than to ships in distress, that Directive should be amended accordingly. This Directive does not affect the rules applicable to rescue operations such as those laid down by the International Convention on Maritime Search and Rescue, where the safety of human life is at stake.
(12)
To make provision for ships in need of assistance as referred to in IMO Resolution A.949(23), one or more competent authorities should be designated to take decisions with a view to minimising risks to maritime safety, the safety of human life and the environment.
(13)
On the basis of IMO Resolution A.949(23) and following the work carried out jointly by the Commission, the European Maritime Safety Agency (the Agency) and the Member States, it is necessary to lay down the basic provisions that plans for accommodating ships in need of assistance should contain in order to ensure a harmonised and effective implementation of this measure and clarify the scope of obligations incumbent on the Member States.
(14)
IMO Resolution A.949(23) is to form the basis of any plans prepared by Member States in order to respond effectively to threats posed by ships in need of assistance. However, when assessing the risks associated with such threats, Member States may, in view of their special circumstances, take into consideration other factors, such as the use of sea water for the production of potable water as well as the generation of electricity.
(15)
Seafarers are recognised as a special category of worker and, given the global nature of the shipping industry and the different jurisdictions that they may be brought into contact with, need special protection, especially in relation to contacts with public authorities. In the interests of increased maritime safety, seafarers should be able to rely on fair treatment in the event of a maritime accident. Their human rights and dignity should be preserved at all times and all safety investigations should be conducted in a fair and expeditious manner. To that end, Member States should, in accordance with their national legislation, further take into account the relevant provisions of the IMO guidelines on the fair treatment of seafarers in the event of a maritime accident.
(16)
When a ship is in need of assistance, a decision may have to be taken as regards the accommodation of that ship in a place of refuge. This is particularly important in the event of a situation that could give rise to the loss of a vessel or an environmental or navigational hazard. In such a case, it is necessary to be able to call on an authority in a Member State, depending on the internal structure of that Member State, having the required expertise and the power to take independent decisions as regards the accommodation of a ship in a place of refuge. It is also important that the decision is taken after a preliminary evaluation of the situation on the basis of the information contained in the relevant plan for accommodation of ships in a place of refuge. It is desirable that the competent authorities should be permanent in nature.
(17)
Plans for accommodating ships in need of assistance should describe precisely the decision-making chain with regard to alerting and dealing with the situation in question. The authorities concerned and their remits should be clearly described, as should the means of communication between the parties involved. The applicable procedures should ensure that an appropriate decision can be taken quickly on the basis of specific maritime expertise and adequate information available to the competent authority.
(18)
Ports which accommodate a ship should be able to rely on prompt compensation in respect of costs and any damage arising from the operation. To that end, it is important that the relevant international conventions be applied. Member States should endeavour to put in place a legal framework under which they could, in exceptional circumstances and in accordance with Community law, compensate a port or other entity for costs and economic loss suffered as a result of accommodating a ship. Moreover, the Commission should examine existing mechanisms within Member States for the compensation of potential economic loss suffered by a port or a body and should, on the basis of this examination, put forward and evaluate different policy options.
(19)
When drawing up the plans, Member States should gather information on potential places of refuge on the coast so as to allow the competent authority, in the event of an accident or incident at sea, to identify clearly and quickly the most suitable areas for accommodating ships in need of assistance. This relevant information should contain a description of certain characteristics of the sites under consideration and the equipment and installations available to make it easier to accommodate ships in need of assistance or deal with the consequences of an accident or pollution.
(20)
It is important for the list of competent authorities responsible for deciding whether to accommodate a ship in a place of refuge, and the list of authorities responsible for receiving and handling alerts, to be published appropriately. It may also prove useful for the parties involved in a maritime assistance operation, including assistance and towing companies, and the authorities of neighbouring Member States likely to be affected by an emergency at sea, to have access to relevant information.
(21)
The absence of financial insurance does not exonerate a Member State from its obligation to perform a preliminary assessment and to decide on the acceptance of the ship in a place of refuge. Though the competent authorities may verify whether the ship is covered by insurance or some other effective form of financial security permitting appropriate compensation for costs and damages associated with its accommodation in a place of refuge, the act of requesting this information must not delay the rescue operation.
(22)
The specific function of the vessel traffic monitoring and ship's routing measures is to allow Member States to obtain a true knowledge of the ships using the waters under their jurisdiction and thus enable them to take more effective action against potential risks if necessary. Sharing the information gathered helps to improve its quality and makes it easier to process.
(23)
In accordance with Directive 2002/59/EC, Member States and the Commission have made substantial progress towards harmonising electronic data exchange, in particular as regards the transport of dangerous or polluting goods. SafeSeaNet, in development since 2002, should now be established as the reference network at Community level. SafeSeaNet should aim at reducing administrative burdens and costs for industry and the Member States. It should also aim at facilitating the uniform implementation, where appropriate, of international reporting and notification rules.
(24)
The progress made in the new technologies and in particular in their space applications, such as beacon-based ship monitoring systems, imaging systems or Global Navigation Satellite System (GNSS), now makes it possible to extend traffic monitoring further offshore and thereby to ensure better coverage of European waters, including by Long Range Identification and Tracking (LRIT) systems. There will have to be full cooperation within the Community on this work if these tools are to become an integral part of the vessel traffic monitoring and information system established by Directive 2002/59/EC.
(25)
In order to enable cost savings and avoid unnecessary fitting of equipment on board ships sailing in maritime areas within the coverage of AIS fixed-based stations, Member States and the Commission should cooperate to determine the requirements concerning the fitting of equipment for transmitting LRIT information and should submit to the IMO any appropriate measures.
(26)
Publication of AIS and LRIT data transmitted by ships should not create a risk to safety, security or the protection of the environment.
(27)
In order to guarantee the best possible harmonised use at Community level of information gathered under Directive 2002/59/EC concerning maritime safety, the Commission should be able, if necessary, to process and use that information and disseminate it to the authorities designated by the Member States.
(28)
In this context, the development of the ‘Equasis’ system has shown how important it is to encourage a ‘safe seas’ culture, especially in maritime transport operators. The Commission should be able to contribute to the dissemination, particularly via this system, of any information relating to maritime safety.
(29)
Regulation (EC) No 2099/2002 of the European Parliament and of the Council of 5 November 2002 establishing a Committee on Safe Seas and the Prevention of Pollution from Ships (COSS) centralises the tasks of the committees set up under the relevant Community legislation on maritime safety, prevention of pollution from ships and protection of living and working conditions on board. The existing committee should therefore be replaced by the COSS.
(30)
Amendments to the international instruments referred to should also be taken into account.
(31)
The measures necessary for the implementation of this Directive should be adopted in accordance with Council Decision 1999/468/EC of 28 June 1999 laying down the procedures for the exercise of implementing powers conferred to the Commission.
(32)
In particular, the Commission should be empowered to amend Directive 2002/59/EC in order to apply subsequent amendments to the international conventions, protocols, codes and resolutions related thereto. Since those measures are of general scope and are designed to amend non-essential elements of that Directive, inter alia by supplementing it with new non-essential elements, they must be adopted in accordance with the regulatory procedure with scrutiny provided for in Article 5a of Decision 1999/468/EC.
(33)
In accordance with Regulation (EC) No 1406/2002 of the European Parliament and of the Council of 27 June 2002 establishing a European Maritime Safety Agency, the Agency provides the Commission and Member States with the necessary support in implementing Directive 2002/59/EC.
(34)
In accordance with point 34 of the Interinstitutional Agreement on better law-making, Member States are encouraged to draw up, for themselves and in the interests of the Community, their own tables illustrating, as far as possible, the correlation between this Directive and the transposition measures, and to make them public.
(35)
Directive 2002/59/EC should therefore be amended accordingly,
HAVE ADOPTED THIS DIRECTIVE: