Commission Regulation (EU) No 788/2014Show full title

[X1 CHAPTER IV U.K. COMMON PROVISIONS

Article 12 U.K. Statement of objections

1. Where the [F1 Secretary of State] considers that there are grounds to impose a fine and periodic penalty payments on a recognised organisation in accordance with Article 6 of Regulation (EC) No 391/2009, or to withdraw an organisation's recognition in accordance with Article 7 of that Regulation, it shall address a statement of objections to the organisation F2 ....

2. The statement of objections shall include:

(a) a detailed account of the recognised organisation's actions and omissions, including the description of the relevant facts and the identification of the provisions of Regulation (EC) No 391/2009, which the [F1 Secretary of State] considers to have been breached by the recognised organisation;

(b) an identification of the evidence on which the relevant findings are based, including by reference to inspection reports, assessment reports, or any other relevant documents which have been previously communicated to the organisation concerned by the [F1 Secretary of State]F3 ...;

(c) a notice that fines and periodic penalty payments or the withdrawal of recognition may be imposed by the [F1 Secretary of State] in accordance with Articles 6 or 7 of Regulation (EC) No 391/2009.

3. When notifying the statement of objections, the [F1 Secretary of State] shall invite the recognised organisation F4 ... to submit written observations within a designated time limit, which shall not, in any event, be less than six weeks of the date of receipt of the statement of objections. The [F1 Secretary of State] shall not be obliged to take into account submissions received after the expiry of that time limit, without prejudice to the provisions of Article 24 paragraph 4 of this Regulation.

4. The notification of a statement of objections shall not suspend the assessment of the organisation concerned. At any moment prior to the adoption of a decision to impose a fine and periodic penalty payments, or the withdrawal of recognition in accordance with this Regulation, the [F1 Secretary of State] may decide to carry out additional inspections of an organisation's offices and facilities, to visit ships certified by the organisation or to request the recognised organisation in writing to provide additional information relating to its compliance with the criteria and obligations under Regulation (EC) No 391/2009.

5. At any moment prior to the adoption of a decision to impose a fine and periodic penalty payments, or the withdrawal of recognition in accordance with this Regulation, the [F1 Secretary of State] may amend its assessment of the recognised organisation concerned. If the new assessment is different to the assessment which gave rise to the statement of objections, because new facts have been discovered, or because new infringements or new circumstances concerning the seriousness of an infringement or its effects on safety and the environment have been identified, the [F1 Secretary of State] shall issue a new statement of objections.

Textual Amendments

F1 Words in Art. 12 substituted (31.12.2020) by The Merchant Shipping (Recognised Organisations) (Amendment) (EU Exit) Regulations 2019 (S.I. 2019/270), regs. 1(2), 4(12)(a); 2020 c. 1, Sch. 5 para. 1(1)

F2 Words in Art. 12(1) omitted (31.12.2020) by virtue of The Merchant Shipping (Recognised Organisations) (Amendment) (EU Exit) Regulations 2019 (S.I. 2019/270), regs. 1(2), 4(12)(b); 2020 c. 1, Sch. 5 para. 1(1)

F3 Words in Art. 12(2)(b) omitted (31.12.2020) by virtue of The Merchant Shipping (Recognised Organisations) (Amendment) (EU Exit) Regulations 2019 (S.I. 2019/270), regs. 1(2), 4(12)(c); 2020 c. 1, Sch. 5 para. 1(1)

F4 Words in Art. 12(3) omitted (31.12.2020) by virtue of The Merchant Shipping (Recognised Organisations) (Amendment) (EU Exit) Regulations 2019 (S.I. 2019/270), regs. 1(2), 4(12)(d); 2020 c. 1, Sch. 5 para. 1(1)

Article 13 U.K. Requests for information

In order to clarify the facts for the purposes of Article 12, the [F5 Secretary of State] may request in writing the recognised organisation to provide written or oral explanations, or particulars or documents, within a designated time limit, which shall not, in any event, be less than 4 weeks. In such a case the [F5 Secretary of State] shall inform the recognised organisation of the periodic penalty payments and fines that may be imposed for failing to comply with the request or when incurring unjustified delays in the provision of information or providing deliberately incorrect, incomplete or misleading information to the [F5 Secretary of State].

Textual Amendments

F5 Words in Art. 13 substituted (31.12.2020) by The Merchant Shipping (Recognised Organisations) (Amendment) (EU Exit) Regulations 2019 (S.I. 2019/270), regs. 1(2), 4(13); 2020 c. 1, Sch. 5 para. 1(1)

Article 14 U.K. Oral hearing

1. At the request of the recognised organisation to which a statement of objections has been addressed, the [F6 Secretary of State] shall offer that organisation the opportunity to present its arguments at an oral hearing.

2. [F7 The Secretary of State may invite any other persons with a legitimate interest in the infringement to take part in the oral hearing.]

3. Natural or private legal persons invited to attend shall either appear in person or be represented by legal or authorised representatives. F8 ...

4. The oral hearing shall not be public. Each person invited to attend may be heard separately or in the presence of other persons invited to attend, having regard to the legitimate interest of the recognised organisation and other parties in the protection of their business secrets and other confidential information.

5. The statements made by each person heard shall be recorded. Upon request, the recording of the hearing shall be made available to the persons who attended the hearing F9 ....

Textual Amendments

F6 Words in Art. 14(1) substituted (31.12.2020) by The Merchant Shipping (Recognised Organisations) (Amendment) (EU Exit) Regulations 2019 (S.I. 2019/270), regs. 1(2), 4(14)(a); 2020 c. 1, Sch. 5 para. 1(1)

F7 Art. 14(2) substituted (31.12.2020) by The Merchant Shipping (Recognised Organisations) (Amendment) (EU Exit) Regulations 2019 (S.I. 2019/270), regs. 1(2), 4(14)(b); 2020 c. 1, Sch. 5 para. 1(1)

F8 Words in Art. 14(3) omitted (31.12.2020) by virtue of The Merchant Shipping (Recognised Organisations) (Amendment) (EU Exit) Regulations 2019 (S.I. 2019/270), regs. 1(2), 4(14)(c); 2020 c. 1, Sch. 5 para. 1(1)

F9 Words in Art. 14(5) omitted (31.12.2020) by virtue of The Merchant Shipping (Recognised Organisations) (Amendment) (EU Exit) Regulations 2019 (S.I. 2019/270), regs. 1(2), 4(14)(d); 2020 c. 1, Sch. 5 para. 1(1)

Article 15 U.K. Periodic penalty payments for non-cooperation

1. Where the [F10 Secretary of State] intends to [F11 make] a decision imposing periodic penalty payments as referred to in Article 7(1) to a recognised organisation that has failed to undertake or incurs unjustified delays in undertaking preventive and remedial action requested by the [F10 Secretary of State], [F12 the Secretary of State] shall first notify the recognised organisation in writing.

2. The notification by the [F10 Secretary of State] in accordance with paragraph 1 shall make reference to the specific preventive and remedial action that has not been undertaken by the recognised organisation and the supporting evidence, as well as inform the recognised organisation of the periodic penalty payments that are being considered by the [F10 Secretary of State] thereon.

3. The [F10 Secretary of State] shall set a time limit in which the recognised organisation may submit written observations to the [F10 Secretary of State]. The [F10 Secretary of State] shall not be obliged to take into account written observations received after the expiry of the time limit.

Textual Amendments

F10 Words in Art. 15 substituted (31.12.2020) by The Merchant Shipping (Recognised Organisations) (Amendment) (EU Exit) Regulations 2019 (S.I. 2019/270), regs. 1(2), 4(15)(a); 2020 c. 1, Sch. 5 para. 1(1)

F11 Word in Art. 15(1) substituted (31.12.2020) by The Merchant Shipping (Recognised Organisations) (Amendment) (EU Exit) Regulations 2019 (S.I. 2019/270), regs. 1(2), 4(15)(b)(i); 2020 c. 1, Sch. 5 para. 1(1)

F12 Words in Art. 15(1) substituted (31.12.2020) by The Merchant Shipping (Recognised Organisations) (Amendment) (EU Exit) Regulations 2019 (S.I. 2019/270), regs. 1(2), 4(15)(b)(ii); 2020 c. 1, Sch. 5 para. 1(1)

Article 16 U.K. Access to the file

1. At the request of the recognised organisation to which a statement of objections has been addressed, the [F13 Secretary of State] shall grant access to the file containing documents and other evidence compiled by the [F13 Secretary of State] on the alleged infringement.

2. The [F13 Secretary of State] shall set the date and make the relevant practical arrangements for the recognised organisation's access to the file, which may be granted in electronic form only.

3. The [F13 Secretary of State] shall make available to the recognised organisation concerned, upon request, a list of all the documents contained in the file.

4. The recognised organisation concerned shall have the right to access the documents and information contained in the file. When granting such access, the [F13 Secretary of State] shall have due regard to business secrets, confidential information or the internal character of documents issued by the [F13 Secretary of State]F14 ....

5. [F15 For the purposes of paragraph 4, internal documents of the Secretary of State may include documents or parts of documents pertaining to the internal deliberations of the Secretary of State.]

Textual Amendments

F13 Words in Art. 16 substituted (31.12.2020) by The Merchant Shipping (Recognised Organisations) (Amendment) (EU Exit) Regulations 2019 (S.I. 2019/270), regs. 1(2), 4(16)(a); 2020 c. 1, Sch. 5 para. 1(1)

F14 Words in Art. 16(4) omitted (31.12.2020) by virtue of The Merchant Shipping (Recognised Organisations) (Amendment) (EU Exit) Regulations 2019 (S.I. 2019/270), regs. 1(2), 4(16)(b); 2020 c. 1, Sch. 5 para. 1(1)

F15 Art. 16(5) substituted (31.12.2020) by The Merchant Shipping (Recognised Organisations) (Amendment) (EU Exit) Regulations 2019 (S.I. 2019/270), regs. 1(2), 4(16)(c); 2020 c. 1, Sch. 5 para. 1(1)

Article 17 U.K. Legal representation

The recognised organisation shall have the right to legal representation at all stages of the proceedings under this Regulation.

Article 18 U.K. Confidentiality, professional secrecy and the right to remain silent

1. Proceedings under this Regulation shall be carried out subject to the principles of confidentiality and of professional secrecy.

2. The [F16 Secretary of State]F17 ... shall not disclose information acquired or exchanged F17 ... pursuant to this Regulation and of the kind covered by the obligation of professional secrecy and confidentiality.

3. Any recognised organisation or other person who submits information or observations pursuant to this Regulation shall clearly identify any material considered to be confidential, giving the reasons for it, and provide a separate non-confidential version by the date set by the [F16 Secretary of State].

4. The [F16 Secretary of State] may also require recognised organisations and other interested parties to identify any part of a report, of the statement of objections or of a decision by the [F16 Secretary of State], which in their view contains business secrets.

5. In the absence of the identification referred to in paragraphs 3 and 4, the [F16 Secretary of State] may assume that the documents or observations concerned do not contain confidential information.

6. Without prejudice to Article 9 of Regulation (EC) No 391/2009, recognised organisations shall have the right to remain silent in situations where it would otherwise be compelled to provide answers which might involve an admission on their part of the existence of a breach.

Textual Amendments

F16 Words in Art. 18 substituted (31.12.2020) by The Merchant Shipping (Recognised Organisations) (Amendment) (EU Exit) Regulations 2019 (S.I. 2019/270), regs. 1(2), 4(17)(a); 2020 c. 1, Sch. 5 para. 1(1)

F17 Words in Art. 18(2) omitted (31.12.2020) by virtue of The Merchant Shipping (Recognised Organisations) (Amendment) (EU Exit) Regulations 2019 (S.I. 2019/270), regs. 1(2), 4(17)(b); 2020 c. 1, Sch. 5 para. 1(1)

Article 19 U.K. Decision

1. A decision to impose fines, periodic penalty payments, or the withdrawal of recognition in accordance with this Regulation shall be based exclusively on the grounds on which the recognised organisation concerned has been able to submit its observations.

2. The decision to impose a fine or a periodic penalty payment and the determination of the appropriate amount shall take into account the principles of effectiveness, proportionality and dissuasiveness.

3. When taking measures in accordance with this Regulation and deciding on the seriousness and effect of the relevant actions or omissions on safety and the environment the [F18 Secretary of State] shall take into account national measures already taken on the basis of the same facts against the recognised organisation concerned, in particular where that organisation has already been subject to judicial or enforcement proceedings.

4. Actions or omissions of a recognised organisation on the basis of which measures have been taken in accordance with this Regulation shall not be subject to further measures. However, these actions or omissions may be taken into account in subsequent decisions [F19 made] in accordance with this Regulation in order to assess recurrence.

F20 5. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F21 6. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Textual Amendments

F18 Words in Art. 19 substituted (31.12.2020) by The Merchant Shipping (Recognised Organisations) (Amendment) (EU Exit) Regulations 2019 (S.I. 2019/270), regs. 1(2), 4(18)(a); 2020 c. 1, Sch. 5 para. 1(1)

F19 Word in Art. 19(4) substituted (31.12.2020) by The Merchant Shipping (Recognised Organisations) (Amendment) (EU Exit) Regulations 2019 (S.I. 2019/270), regs. 1(2), 4(18)(b); 2020 c. 1, Sch. 5 para. 1(1)

F20 Art. 19(5) omitted (31.12.2020) by virtue of The Merchant Shipping (Recognised Organisations) (Amendment) (EU Exit) Regulations 2019 (S.I. 2019/270), regs. 1(2), 4(18)(c); 2020 c. 1, Sch. 5 para. 1(1)

F21 Art. 19(6) omitted (31.12.2020) by virtue of The Merchant Shipping (Recognised Organisations) (Amendment) (EU Exit) Regulations 2019 (S.I. 2019/270), regs. 1(2), 4(18)(c); 2020 c. 1, Sch. 5 para. 1(1)

Article 20 U.K. Judicial remedies, notification and publication

1. The [F22 Secretary of State] shall inform the recognised organisation concerned of the judicial remedies available to it.

F23 2. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

3. When justified, in particular on grounds of safety or protection of the environment, the [F22 Secretary of State] may make its decision public. When publishing details of its decision F24 ..., the [F22 Secretary of State] shall have regard to the legitimate interests of the recognised organisation concerned and other interested persons.

Textual Amendments

F22 Words in Art. 20 substituted (31.12.2020) by The Merchant Shipping (Recognised Organisations) (Amendment) (EU Exit) Regulations 2019 (S.I. 2019/270), regs. 1(2), 4(19)(a); 2020 c. 1, Sch. 5 para. 1(1)

F23 Art. 20(2) omitted (31.12.2020) by virtue of The Merchant Shipping (Recognised Organisations) (Amendment) (EU Exit) Regulations 2019 (S.I. 2019/270), regs. 1(2), 4(19)(b); 2020 c. 1, Sch. 5 para. 1(1)

F24 Words in Art. 20(3) omitted (31.12.2020) by virtue of The Merchant Shipping (Recognised Organisations) (Amendment) (EU Exit) Regulations 2019 (S.I. 2019/270), regs. 1(2), 4(19)(c); 2020 c. 1, Sch. 5 para. 1(1)

Article 21 U.K. Recovery of fines and penalty payments

The [F25 Secretary of State] shall proceed with the recovery of the fines and the penalty payments by [F26 service of a notice demanding payment of the debt] addressed to the recognised organisation concerned F27 ... .

Textual Amendments

F25 Words in Art. 21 substituted (31.12.2020) by The Merchant Shipping (Recognised Organisations) (Amendment) (EU Exit) Regulations 2019 (S.I. 2019/270), regs. 1(2), 4(20)(a); 2020 c. 1, Sch. 5 para. 1(1)

F26 Words in Art. 21 substituted (31.12.2020) by The Merchant Shipping (Recognised Organisations) (Amendment) (EU Exit) Regulations 2019 (S.I. 2019/270), regs. 1(2), 4(20)(b); 2020 c. 1, Sch. 5 para. 1(1)

F27 Words in Art. 21 omitted (31.12.2020) by virtue of The Merchant Shipping (Recognised Organisations) (Amendment) (EU Exit) Regulations 2019 (S.I. 2019/270), regs. 1(2), 4(20)(c); 2020 c. 1, Sch. 5 para. 1(1)

Article 22 U.K. Limitation periods for the imposition of fines and periodic penalty payments

1. The right of the [F28 Secretary of State] to impose fines and/or periodic penalty payments to a recognised organisation in accordance with this Regulation shall expire after five years from the date when the action or omission of the recognised organisation giving rise to an infringement identified in accordance with Article 3 of this Regulation was committed. However, in case of continuing or repeated actions or omissions giving rise to an infringement, time shall begin to run on the day on which the action or omission ceases.

The right of the [F28 Secretary of State] to impose periodic penalty payments to a recognised organisation in accordance with Article 15 of this Regulation shall expire after three years from the date when the action or omission of the recognised organisation, for which the [F28 Secretary of State] requested appropriate preventive and remedial action, was committed.

2. Any action taken by the [F28 Secretary of State]F29 ... for the purpose of the assessment or the infringement procedure in relation to an action or omission of the recognised organisation shall interrupt the relevant limitation period established under paragraph 1. The limitation period shall be interrupted with effect from the date on which the action of the [F28 Secretary of State]F30 ... is notified to the recognised organisation.

3. Each interruption shall start time running afresh. The limitation period shall, however, not exceed a period equal to twice the initial limitation period, except where limitation is suspended pursuant to paragraph 4.

4. The limitation period for the imposition of periodic penalty payments shall be suspended for as long as the decision of the [F28 Secretary of State] is the subject of [F31 judicial] proceedings F32 ....

Textual Amendments

F28 Words in Art. 22 substituted (31.12.2020) by The Merchant Shipping (Recognised Organisations) (Amendment) (EU Exit) Regulations 2019 (S.I. 2019/270), regs. 1(2), 4(21)(a); 2020 c. 1, Sch. 5 para. 1(1)

F29 Words in Art. 22(2) omitted (31.12.2020) by virtue of The Merchant Shipping (Recognised Organisations) (Amendment) (EU Exit) Regulations 2019 (S.I. 2019/270), regs. 1(2), 4(21)(b)(i); 2020 c. 1, Sch. 5 para. 1(1)

F30 Words in Art. 22(2) omitted (31.12.2020) by virtue of The Merchant Shipping (Recognised Organisations) (Amendment) (EU Exit) Regulations 2019 (S.I. 2019/270), regs. 1(2), 4(21)(b)(ii); 2020 c. 1, Sch. 5 para. 1(1)

F31 Word in Art. 22(4) inserted (31.12.2020) by The Merchant Shipping (Recognised Organisations) (Amendment) (EU Exit) Regulations 2019 (S.I. 2019/270), regs. 1(2), 4(21)(c)(i); 2020 c. 1, Sch. 5 para. 1(1)

F32 Words in Art. 22(4) omitted (31.12.2020) by virtue of The Merchant Shipping (Recognised Organisations) (Amendment) (EU Exit) Regulations 2019 (S.I. 2019/270), regs. 1(2), 4(21)(c)(ii); 2020 c. 1, Sch. 5 para. 1(1)

Article 23 U.K. Limitation periods for the collection of fines and periodic penalty payments

1. The right to [F33 commence judicial proceedings or arbitration] for fines and/or periodic penalty payments shall expire one year after the Decision pursuant to Article 19 has become final.

2. The limitation period referred to in paragraph 1 shall be interrupted by any action of the [F34 Secretary of State], aimed at enforcing payment of the fines and/or periodic penalty payments.

3. Each interruption shall start time running afresh.

4. The limitation periods referred to in paragraphs1 and 2 shall be suspended for as long as:

(a) time to pay is allowed;

(b) enforcement of payment is suspended pursuant to a decision of the [F35 Court seized of the action or an arbitration tribunal].

Textual Amendments

F33 Words in Art. 23(1) substituted (31.12.2020) by The Merchant Shipping (Recognised Organisations) (Amendment) (EU Exit) Regulations 2019 (S.I. 2019/270), regs. 1(2), 4(22)(a); 2020 c. 1, Sch. 5 para. 1(1)

F34 Words in Art. 23(2) substituted (31.12.2020) by The Merchant Shipping (Recognised Organisations) (Amendment) (EU Exit) Regulations 2019 (S.I. 2019/270), regs. 1(2), 4(22)(b); 2020 c. 1, Sch. 5 para. 1(1)

F35 Words in Art. 23(4)(b) substituted (31.12.2020) by The Merchant Shipping (Recognised Organisations) (Amendment) (EU Exit) Regulations 2019 (S.I. 2019/270), regs. 1(2), 4(22)(c); 2020 c. 1, Sch. 5 para. 1(1)

Article 24 U.K. Application of time limits

1. The time limits laid down in this Regulation shall run from the day following receipt of the [F36 Secretary of State's] communication or delivery thereof by hand.

2. In the case of a communication addressed to the [F37 Secretary of State], the relevant time limits shall be deemed to have been met when that communication has been dispatched by registered post before the relevant time limit expires.

3. In setting the time limits, the [F37 Secretary of State] shall have regard both to due process rights and the specific circumstances of each decision-making procedure under this Regulation.

4. Where appropriate and upon reasoned request made before the expiry of the original time limit, time limits may be extended.

Textual Amendments

F36 Words in Art. 24(1) substituted (31.12.2020) by The Merchant Shipping (Recognised Organisations) (Amendment) (EU Exit) Regulations 2019 (S.I. 2019/270), regs. 1(2), 4(23)(a); 2020 c. 1, Sch. 5 para. 1(1)

F37 Words in Art. 24 substituted (31.12.2020) by The Merchant Shipping (Recognised Organisations) (Amendment) (EU Exit) Regulations 2019 (S.I. 2019/270), regs. 1(2), 4(23)(b); 2020 c. 1, Sch. 5 para. 1(1)

F38 Article 25 U.K. Cooperation with national competent authorities

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .]

Textual Amendments

F38 Art. 25 omitted (31.12.2020) by virtue of The Merchant Shipping (Recognised Organisations) (Amendment) (EU Exit) Regulations 2019 (S.I. 2019/270), regs. 1(2), 4(24); 2020 c. 1, Sch. 5 para. 1(1)

Editorial Information

X1 Substituted by Corrigendum to Commission Regulation (EU) No 788/2014 of 18 July 2014 laying down detailed rules for the imposition of fines and periodic penalty payments and the withdrawal of recognition of ship inspection and survey organisations pursuant to Articles 6 and 7 of Regulation (EC) No 391/2009 of the European Parliament and of the Council (Official Journal of the European Union L 214 of 19 July 2014).