5.8.2008

EN

Official Journal of the European Union

CE 198/1

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COMMON POSITION (EC) No 20/2008

adopted by the Council on 6 June 2008

with a view to adopting Directive 2008/…/EC of the European Parliament and of the Council of … on port State control (Recast)

(Text with EEA relevance)

(2008/C 198 E/01)

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 (1),

Having regard to the opinion of the Committee of the Regions (2),

Acting in accordance with the procedure laid down in Article 251 of the Treaty (3),

Whereas:

(1)	Council Directive 95/21/EC of 19 June 1995 on port State control of shipping (4) has been substantially amended several times. Since further amendments are to be made, it should be recast in the interests of clarity.

(2)	The Community is seriously concerned about shipping casualties and pollution of the seas and coastlines of Member States.

(3)	The Community is equally concerned about on-board living and working conditions.

(4)	Safety, pollution prevention and on-board living and working conditions may be effectively enhanced through a drastic reduction of substandard ships from Community waters, by strictly applying Conventions, international codes and resolutions.

(5)

Responsibility for monitoring the compliance of ships with the international standards for safety, pollution prevention and on-board living and working conditions lies primarily with the flag State. Relying, as appropriate, on recognised organisations, the flag State fully guarantees the completeness and efficiency of the inspections and surveys undertaken to issue the relevant certificates. Responsibility for maintenance of the condition of the ship and its equipment after survey to comply with the requirements of Conventions applicable to the ship lies with the ship company. However, there has been a serious failure on the part of a number of flag States to implement and enforce international standards. Henceforth, as a second line of defence against substandard shipping, the monitoring of compliance with the international standards for safety, pollution prevention and on-board living and working conditions should also be ensured by the port State, while recognising that port State control inspection is not a survey and the relevant inspection forms are not seaworthiness certificates.

(6)	A harmonised approach to the effective enforcement of these international standards by Member States in respect of ships sailing in the waters under their jurisdiction and using their ports should avoid distortions of competition.

(7)	The shipping industry is vulnerable to acts of terrorism. Transport security measures should be effectively implemented and Member States should vigorously monitor compliance with security rules by carrying out security checks.

(8)	Advantage should be taken of the experience gained during the operation of the Paris Memorandum of Understanding on Port State Control (Paris MOU), signed in Paris on 26 January 1982.

(9)

The European Maritime Safety Agency (EMSA) established by Regulation (EC) No 1406/2002 of the European Parliament and of the Council of 27 June 2002 (5), should provide the necessary support to ensure the convergent and effective implementation of the port State control system. EMSA should in particular contribute to the development and implementation of the inspection database set up in accordance with this Directive and of a harmonised Community scheme for the training and assessment of competences of port State control inspectors by Member States.

(10)

An efficient port State control regime should seek to ensure that all ships calling at a port within the European Union are regularly inspected. Inspection should concentrate on substandard ships, while quality ships, meaning those which have satisfactory inspection records or which fly the flag of a State complying with the Voluntary International Maritime Organisation (IMO) Member State Audit Scheme, should be rewarded by undergoing less frequent inspections. Such new inspection arrangements should be incorporated into the Community port State control regime as soon as its various aspects have been defined and on the basis of an inspection-sharing scheme whereby each Member State contributes fairly to the achievement of the Community objective of a comprehensive inspection scheme. Moreover, Member States should recruit and retain the requisite number of staff, including qualified inspectors, taking into account the volume and characteristics of shipping traffic at each port.

(11)

The inspection regime set up by this Directive takes into account the work carried out by the Paris MOU. Since any developments arising from the Paris MOU should be agreed at Community level before being made applicable within the EU, close coordination should be established and maintained between the Community and the Paris MOU in order to facilitate as much convergence as possible.

(12)

The Commission should manage and update the inspection database, in close collaboration with the Paris MOU. The inspection database should incorporate inspection data of Member States and all States Parties to the Paris MOU. Until the Community maritime information system, SafeSeaNet, is fully operational and allows for an automatic record of the data concerning ships' calls in the inspection database, Member States should provide the Commission with the information needed to ensure a proper monitoring of the application of this Directive, in particular concerning the movements of ships. On the basis of the inspection data provided by Member States, the Commission should retrieve from the inspection database data on the risk profile of ships, on ships due for inspections and on the movement of ships and should calculate the inspection commitments for each Member State. The inspection database should also be capable of interfacing with other Community maritime safety databases.

(13)	Member States should endeavour to review the method of drawing the white, grey and black list of flag States in the framework of the Paris MOU, in order to ensure its fairness, in particular with respect to the way it treats flag States with small fleets.

(14)	The rules and procedures for port State control inspections, including criteria for the detention of ships, should be harmonised to ensure consistent effectiveness in all ports, which would also drastically reduce the selective use of certain ports of destination to avoid the net of proper control.

(15)

Ships calling at Community ports are subject to periodic and additional inspections that include an examination of pre-identified areas for each ship, which will vary according to the type of ship, the type of inspection and the findings of previous port State control inspections. The inspection database should indicate the elements to identify the risk areas to be checked at each inspection.

(16)	Certain categories of ships present a major accident or pollution hazard when they reach a certain age and should therefore be subject to an expanded inspection. The details of such expanded inspection should be laid down.

(17)	Under the inspection regime set up by this Directive, the intervals between periodic inspections on ships depend on their risk profile that is determined by certain generic and historical parameters. For high-risk ships this interval should not exceed six months.

(18)

In order to provide the competent port State control authorities with information on ships in ports, port authorities or the authorities or bodies designated for that purpose should forward notifications on arrivals of ships, on receipt to the extent possible, notably depending on their capacity to maintain sufficient resources outside usual opening hours of their offices.

(19)

Some ships pose a manifest risk to maritime safety and the marine environment because of their poor condition, flag performance and history. It is therefore legitimate for the Community to dissuade those ships from entering the ports of Member States. The refusal of access should be proportionate and could result in an indefinite refusal of access, if the operator of the ship persistently fails to take corrective action in spite of several refusals of access and detentions in ports within the Community. This indefinite refusal of access should only be lifted if a number of conditions designed to ensure that the ship concerned can be operated safely in Community waters, in particular relating to the flag State of the ship and the managing company, are fulfilled. In the interests of transparency, the list of ships refused access to ports within the Community should be made public.

(20)

With a view to reducing the burden placed on certain administrations and companies by repetitive inspections, surveys under Council Directive 1999/35/EC of 29 April 1999 on a system of mandatory surveys for the safe operation of regular ro-ro ferry and high-speed passenger craft services (6), carried out on ro-ro ferries or high-speed passenger craft by a host State which is not the flag State of the vessel, and which include at least all the items of an expanded inspection, should be taken into account when calculating the risk profile of a ship, the intervals between inspections and the fulfilment of the inspection commitment of each Member State. In addition, the Commission should examine whether it is appropriate that Directive 1999/35/EC be amended in the future with a view of enhancing the level of safety required for the operation of ro-ro ferries and high-speed passenger craft to and from ports of Member States.

(21)	Non-compliance with the provisions of the relevant Conventions should be rectified. Ships which need to be the subject of corrective action should, where the observed deficiencies are clearly hazardous to safety, health or the environment, be detained until the shortcomings are rectified.

(22)	A right of appeal against detention orders by the competent authorities should be made available, in order to prevent unreasonable decisions which may cause undue detention and delay.

(23)

Authorities and inspectors involved in port State control activities should have no conflict of interests with the port of inspection or with the ships inspected, or of related interests. Inspectors should be adequately qualified and receive appropriate training to maintain and improve their competence in the conduct of inspections. Member States should cooperate in developing and promoting a harmonised Community scheme for the training and assessment of competences of inspectors.

(24)	Pilots and port authorities or bodies should be enabled to provide useful information on apparent anomalies found on board ships.

(25)	Complaints regarding on-board living and working conditions should be investigated. Any person lodging a complaint should be informed of the follow-up action given to that complaint.

(26)	Cooperation between the competent authorities of Member States and other authorities or organisations is necessary to ensure an effective follow-up with regard to ships with deficiencies, which have been permitted to proceed, and for the exchange of information about ships in port.

(27)	Since the inspection database is an essential part of port State control, Member States should ensure that it is updated in the light of Community requirements.

(28)

Publication of information concerning ships and their operators or companies which do not comply with international standards on safety, health and protection of the marine environment may be an effective deterrent discouraging shippers from using such ships and an incentive to their owners to take corrective action. With regard to the information to be made available, the Commission should establish a close collaboration with the Paris MOU and take account of any information published in order to avoid unnecessary duplication. Member States should have to provide the relevant information only once.

(29)	All costs of inspecting, which warrant detention of ships, and those incurred in lifting a refusal of access, should be borne by the owner or the operator.

(30)	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 on the Commission (7).

(31)

In particular, the Commission should be empowered to amend this Directive in order to apply subsequent amendments to Conventions, international codes and resolutions related thereto and to establish the rules of implementation for the provisions of Articles 7 and 9. Since those measures are of general scope and are designed to amend non-essential elements of this 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.

(32)

Since the objectives of this Directive, namely to reduce substandard shipping in waters under Member States' jurisdiction through improvement of the Community's inspection system for seagoing ships and the development of the means of taking preventive action in the field of pollution of the seas, cannot be sufficiently achieved by Member States and may, therefore, on account of their scale and effects, be better achieved at Community level, the Community may take measures in accordance with the principle of subsidiarity as set out in Article 5 of the Treaty. In accordance with the principle of proportionality as set out in that Article, this Directive does not go beyond what is necessary to achieve those objectives.

(33)	The obligation to transpose this Directive into national law should be confined to those provisions which represent a substantive change as compared with Directive 95/21/EC. The obligation to transpose the provisions which are unchanged arises under that Directive.

(34)	This Directive should be without prejudice to the obligations of Member States relating to the time-limits for transposition into national law of the Directives set out in Annex XV, Part B.

(35)

In accordance with point 34 of the Interinstitutional Agreement on better law-making (8), 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.

(36)

In order not to impose a disproportionate administrative burden on landlocked Member States, a de minimis rule should allow such Member States to derogate from the provisions of this Directive, which means that such Member States, as long as they meet certain criteria, are not obliged to transpose this Directive.

(37)

In order to take into account the fact that the French overseas departments belong to a different geographical area, are to a large extent Parties to regional port State control memoranda other than the Paris MOU and have very limited traffic flows with mainland Europe, the Member State concerned should be allowed to exclude those ports from the port State control system applied within the Community,

HAVE ADOPTED THIS DIRECTIVE:

Article 1

Purpose

The purpose of this Directive is to help to drastically reduce substandard shipping in the waters under the jurisdiction of Member States by:

(a)	increasing compliance with international and relevant Community legislation on maritime safety, maritime security, protection of the marine environment and on-board living and working conditions of ships of all flags;

(b)	establishing common criteria for control of ships by the port State and harmonising procedures on inspection and detention, building upon the expertise and experience within the Paris MOU;

(c)

implementing within the Community a port State control system based on the inspections performed within the Community and the Paris MOU region, aiming at the inspection of all ships with a frequency depending on their risk profile, with ships posing a higher risk being subject to a more detailed inspection carried out at more frequent intervals.

Article 2

Definitions

For the purposes of this Directive the following definitions shall apply:

1)

‘Conventions’ means the following Conventions, with the Protocols and amendments thereto, and related codes of mandatory status, in their up-to-date version: (a) the International Convention on Load Lines, 1966 (LL 66); (b) the International Convention for the Safety of Life at Sea, 1974 (SOLAS 74); (c) the International Convention for the Prevention of Pollution from Ships, 1973, and the 1978 Protocol relating thereto (MARPOL 73/78); (d) the International Convention on Standards of Training, Certification and Watchkeeping for Seafarers, 1978 (STCW 78); (e) the Convention on the International Regulations for Preventing Collisions at Sea, 1972 (Colreg 72); (f) the International Convention on Tonnage Measurement of Ships, 1969 (ITC 69); (g) the Merchant Shipping (Minimum Standards) Convention, 1976 (ILO No 147); (h) the International Convention on Civil Liability for Oil Pollution Damage, 1992 (CLC 92).

2)	‘Paris MOU’ means the Memorandum of Understanding on Port State Control, signed in Paris on 26 January 1982, in its up-to-date version.

3)	‘Framework and procedures for the Voluntary IMO Member State Audit Scheme’ means IMO Assembly Resolution A.974(24).

4)	‘Paris MOU region’ means the geographical area in which the States party to the Paris MOU conduct inspections in the context of the Paris MOU.

5)	‘Ship’ means any seagoing vessel to which one or more of the Conventions apply, flying a flag other than that of the port State.

6)	‘Ship/port interface’ means the interactions that occur when a ship is directly and immediately affected by actions involving the movement of persons or goods or the provision of port services to or from the ship.

7)	‘Ship at anchor’ means a ship in a port or another area within the jurisdiction of a port, but not at berth, carrying out a ship/port interface.

8)	‘Inspector’ means a public-sector employee or other person, duly authorised by the competent authority of a Member State to carry out port-State control inspections, and responsible to that competent authority.

9)	‘Competent authority’ means a maritime authority responsible for port State control in accordance with this Directive.

10)	‘Competent authority for maritime security’ means a competent authority for maritime security as defined in Article 2, point 7 of Regulation (EC) No 725/2004 of the European Parliament and of the Council of 31 March 2004 on enhancing ship and port facility security (9).

11)	‘Night time’ means any period of not less than seven hours, as defined by national law, and which must include, in any case, the period between midnight and 5.00.

12)	‘Initial inspection’ means a visit on board a ship by an inspector, in order to check compliance with the relevant Conventions and regulations and including at least the checks required by Article 12(1).

13)

‘More detailed inspection’ means an inspection where the ship, its equipment and crew as a whole or, as appropriate, parts thereof are subjected, in the circumstances specified in Article 12(3), to an in-depth examination covering the ship's construction, equipment, manning, living and working conditions and compliance with on-board operational procedures.

14)	‘Expanded inspection’ means an inspection, which covers at least the items listed in Annex VII. An expanded inspection may include a more detailed inspection whenever there are clear grounds in accordance with Article 12(3).

15)	‘Complaint’ means any information or report submitted by any person with a legitimate interest in the safety of the ship, including an interest in safety or health hazards to its crew, on-board living and working conditions and the prevention of pollution.

16)	‘Detention’ means the formal prohibition for a ship to proceed to sea due to established deficiencies which, individually or together, make the ship unseaworthy.

17)	‘Refusal of access order’ means a decision issued to the master of a ship, to the company responsible for the ship and to the flag State notifying them that the ship will be refused access to ports of the Community.

18)	‘Stoppage of an operation’ means a formal prohibition for a ship to continue an operation due to established deficiencies which, individually or together, would render the continued operation hazardous.

19)

‘Company’ means the owner of the ship or any other organisation or person such as the manager, or the bareboat charterer, who has assumed the responsibility for operation of the ship from the owner of the ship and who, on assuming such responsibility, has agreed to take over all the duties and responsibilities imposed by the International Safety Management (ISM) Code.

20)	‘Recognised Organisation’ means a classification company or other private body, carrying out statutory tasks on behalf of a flag State administration.

21)	‘Statutory certificate’ means a certificate issued by or on behalf of a flag State in accordance with Conventions.

22)	‘Classification certificate’ means a document confirming compliance with SOLAS 74, Chapter II-1, Part A-1, Regulation 3-1.

23)	‘Inspection database’ means the information system concerning the port State control data within the Community and the Paris MOU region.

Article 3

Scope

1.   This Directive shall apply to any ship and its crew calling at a port of a Member State to engage in a ship/port interface.

Where in this Directive reference is made to ships calling at ports, and unless otherwise specified, this Directive shall also apply to ships at anchor.

France may decide that the ports covered by this paragraph do not include ports situated in the overseas departments referred to in Article 299(2) of the Treaty.

If a Member State performs an inspection of a ship in waters within its jurisdiction, other than at a port, it shall be considered as an inspection for the purposes of this Directive.

Nothing in this Article shall affect the rights of intervention available to a Member State under the relevant Conventions.

Member States which do not have seaports and which can verify that of the total number of individual vessels calling annually over a period of the three previous years at their river ports, less than 5 % are ships covered by this Directive, may derogate from the provisions of this Directive.

They shall communicate to the Commission at the latest on the date of transposition of the Directive the total number of vessels and the number of ships calling at their ports during the three-year period referred to above and shall inform the Commission of any subsequent change to the abovementioned figures.

2.   Where the gross tonnage of a ship is less than 500, Member States shall apply those requirements of a relevant Convention which are applicable and shall, to the extent that a Convention does not apply, take such action as may be necessary to ensure that the ships concerned are not clearly hazardous to safety, health or the environment. In applying this paragraph, Member States shall be guided by Annex 1 to the Paris MOU.

3.   When inspecting a ship flying the flag of a State which is not a party to a Convention, Member States shall ensure that the treatment of such ship and its crew is not more favourable than that of a ship flying the flag of a State party to that Convention.

4.   Fishing vessels, warships, naval auxiliaries, wooden ships of a primitive build, government ships used for non-commercial purposes and pleasure yachts not engaged in trade shall be excluded from the scope of this Directive.

Article 4

Inspection powers

1.   Member States shall take all necessary measures, in order to be legally entitled to carry out the inspections referred to in this Directive on board foreign ships, in accordance with international law.

2.   Member States shall maintain appropriate competent authorities with the requisite number of staff, in particular qualified inspectors, for the inspection of ships and shall take appropriate measures to ensure that inspectors perform their duties as laid down in this Directive and in particular that they are available for carrying out the inspections required in accordance with this Directive.

Article 5

Inspection regime and annual inspection commitment

1.   Member States shall carry out inspections in accordance with the selection scheme described in Article 11 and the provisions in Annex I.

2.   In order to comply with its annual inspection commitment, each Member State shall

(a)	inspect all Priority I ships, referred to in Article 11(a), calling at its ports, and

(b)

carry out annually a total number of inspections of Priority I and Priority II ships, referred to in Article 11(a) and (b), corresponding at least to its share of the total number of inspections to be carried out annually within the Community and the Paris MOU region. The inspection share of each Member State shall be based on the number of individual ships calling at ports of the Member State concerned in relation to the sum of the number of individual ships calling at the ports of each State within the Community and the Paris MOU region.

3.   With a view to calculating the share of the total number of inspections to be carried out annually within the Community and the Paris MOU region referred to in point (b) of paragraph 2, ships at anchor shall not be counted unless otherwise specified by the Member State concerned.

Article 6

Modalities of compliance with the inspection commitment

1.   A Member State which fails to carry out the inspections required in Article 5(2)(a), complies with its commitment in accordance with that provision if such missed inspections do not exceed:

(a)	5 % of the total number of Priority I ships with a high risk profile calling at its ports;

(b)	10 % of the total number of Priority I ships other than those with a high risk profile calling at its ports.

Notwithstanding the percentages in (a) and (b), Member States shall prioritise inspection of ships, which, according to the information provided by the inspection database, call at ports within the Community infrequently.

2.   A Member State in which the total number of calls of Priority I ships exceeds its inspection share referred to in Article 5(2)(b), shall be regarded as complying with such commitment, if a number of inspections on Priority I ships carried out by that Member State corresponds at least to such inspection share and if that Member State does not miss more than 30 % of the total number of Priority I ships calling at its ports.

3.   A Member State, in which the total number of calls of Priority I and Priority II ships is less than the inspection share referred to in Article 5(2)(b), shall be regarded as complying with such commitment, if that Member State carries out the inspections of Priority I ships required under Article 5(2)(a) and inspections on at least 85 % of the total number of Priority II ships calling at its ports.

Article 7

Cases in which certain ships are not inspected

1.   A Member State may decide to postpone the inspection of a Priority I ship in the following circumstances:

(a)	if the inspection may be carried out at the next call of the ship in the same Member State, provided that the ship does not call at any other port in the Community or the Paris MOU region in between and the postponement is not more than 15 days, or

(b)	if the inspection may be carried out in another port of call within the Community or the Paris MOU region within 15 days, provided the State in which such port of call is located has agreed in advance to perform the inspection.

If an inspection is postponed in accordance with point (a) or (b) and recorded in the inspection database, a missed inspection shall not be counted as a missed inspection against the Member State which postponed the inspection.

2.   Where an inspection is not performed on Priority I ships for operational reasons, it shall not be counted as a missed inspection, provided that the reason for missing the inspection is recorded in the inspection data base and the following exceptional circumstances occur:

(a)	in the judgement of the competent authority the conduct of the inspection would create a risk to the safety of inspectors, the ship, its crew or to the port, or to the marine environment, or

(b)	the ship call takes place only during night time. In this case Member States shall take the measures necessary to ensure that ships which call regularly during night time are inspected as appropriate.

3.   If an inspection is not performed on a ship at anchor, it shall not be counted as a missed inspection if:

(a)	the ship is inspected in another port within the Community or the Paris MOU region in accordance with Annex I within 15 days, or

(b)	the ship call takes place only during night time or its duration is too short for the inspection to be carried out satisfactorily, and the reason for missing the inspection is recorded in the inspection database, or

(c)	in the judgement of the competent authority the conduct of the inspection would create a risk to the safety of inspectors, the ship, its crew or to the port, or to the marine environment, and the reason for missing the inspection is recorded in the inspection database.

4.   The measures designed to amend non-essential elements of this Directive, by supplementing it, relating to the rules for the implementation of this Article shall be adopted in accordance with the regulatory procedure with scrutiny referred to in Article 30(3).

Article 8

Notification of arrival of ships

1.   The operator, agent or master of a ship which, in accordance with Article 13, is eligible for an expanded inspection and bound for a port of a Member State, shall notify its arrival in accordance with the provisions laid down in Annex III.

2.   On receipt of the notification referred to in paragraph 1 of this Article and in Article 4 of Directive 2002/59/EC of the European Parliament and of the Council of 27 June 2002 establishing a Community vessel traffic monitoring and information system (10), the port authority or body or the authority or body designated for that purpose shall forward such information to the competent authority.

3.   Electronic means shall be used whenever possible for any communication provided for in this Article.

4.   The procedures and formats developed by Member States for the purposes of Annex III shall comply with the relevant provisions laid down in Directive 2002/59/EC regarding ships' notifications.

Article 9

Ship risk profile

1.   All ships in the inspection data base shall be attributed a ship risk profile which determines their respective priority for inspection, the intervals between the inspections and the scope of inspections.

2.   The risk profile of a ship shall be determined by a combination of generic and historical risk parameters as follows:

(a)	Generic parameters Generic parameters are based on the type, age, flag, involved recognised organisations and company performance in accordance with Annex I part I.1 and Annex II.

(b)	Historical parameters Historical parameters are based on the number of deficiencies and detentions during a given period in accordance with Annex I part I.2 and Annex II.

3.   The measures designed to amend non-essential elements of this Directive, by supplementing it, relating to the rules for the implementation of this Article, in particular:

(a)	the flag State criteria,

(b)	the company performance criteria

shall be adopted in accordance with the regulatory procedure with scrutiny referred to in Article 30(3) and building upon the expertise of the Paris MOU.

Notwithstanding point (a) above, the submission of a Flag State Performance Self-Assessment Form (SAF) shall be used at least until 1 January 2011 as an alternative criterion to the Voluntary IMO Member States Audit Scheme.

Six months before 1 January 2011 the Commission shall examine the progress made in IMO on the implementation of the audit scheme and propose the appropriate measures for the implementation of this criterion, including an extension of the period for the submission of the IMO-SAF if necessary.

Article 10

Frequency of inspections

Ships calling at ports within the Community shall be subject to periodic inspections or to additional inspections as follows:

(a)	Ships shall be subject to periodic inspections at predetermined intervals depending on their risk profile in accordance with Annex I part I. The interval between periodic inspections of ships shall increase as the risk decreases.

(b)

Ships shall be subject to additional inspections regardless of the period since their last periodic inspection as follows: — The competent authority shall ensure that ships to which overriding factors listed in Annex I part II 2A apply are inspected. — Ships to which unexpected factors listed in Annex I part II 2B apply may be inspected. The decision to undertake such an additional inspection is left to the professional judgement of the competent authority.

Article 11

Selection of ships for inspection

The competent authority shall ensure that ships are selected for inspection on the basis of their risk profile as described in Annex I part I and when overriding or unexpected factors arise in accordance with Annex I part II 2A and 2B.

With a view to the inspection of ships, the competent authority:

(a)	shall select ships which are due for a mandatory inspection, referred to as ‘Priority I’ ships, in accordance with the selection scheme described in Annex I part II 3A;

(b)	may select ships which are eligible for inspection, referred to as ‘Priority II’ ships, in accordance with Annex I part II 3B.

Article 12

Initial and more detailed inspections

Member States shall ensure that ships which are selected for inspection in accordance with Article 11 are subject to an initial inspection or a more detailed inspection as follows:

1.

On each initial inspection of a ship, the competent authority shall ensure that the inspector, as a minimum: (a) checks the certificates and documents listed in Annex IV required to be kept on board in accordance with Community maritime legislation and Conventions relating to safety and security; (b) verifies, where appropriate, whether outstanding deficiencies found during the previous inspection carried out by a Member State or by a State signatory to the Paris MOU have been rectified; (c) satisfies himself of the overall condition of the ship, including the hygiene of the ship, including engine room and accommodation.

2.	When, after an inspection referred to in paragraph 1, deficiencies to be rectified at the next port of call have been recorded in the inspection database, the competent authority of such next port may decide not to carry out the verifications referred to in paragraph 1(a) and (c).

3.

A more detailed inspection shall be carried out, including further checking of compliance with on-board operational requirements, whenever there are clear grounds for believing, after the inspection referred to in paragraph 1, that the condition of a ship or of its equipment or crew does not substantially meet the relevant requirements of a Convention. ‘Clear grounds’ shall exist when the inspector finds evidence which in his professional judgement warrants a more detailed inspection of the ship, its equipment or its crew. Examples of ‘clear grounds’ are set out in Annex V.

Article 13

Expanded inspections

1.   The following categories of ships are eligible to an expanded inspection in accordance with Annex I part II 3A and 3B:

—	Ships with a high-risk profile,

—	Passenger ships, oil tankers, gas or chemical tankers or bulk carriers, older than 12 years of age,

—	Ships with a high-risk profile or passenger ships, oil tankers, gas or chemical tankers or bulk carriers, older than 12 years of age, in cases of overriding or unexpected factors,

—	Ships subject to a re-inspection following a refusal of access order issued in accordance with Article 15.

2.   On receipt of a pre-notification provided by a ship eligible for a periodic expanded inspection, the competent authority shall inform the ship if no expanded inspection will be carried out.

The operator or master of the ship shall ensure that sufficient time is available in the operating schedule to allow the expanded inspection to be carried out.

Without prejudice to control measures required for security purposes the ship shall remain in the port until the inspection is completed.

3.   The scope of an expanded inspection, including the risk areas to be covered, is set out in Annex VII. The Commission shall, in accordance with the procedures referred to in Article 30(2), adopt measures for the implementation of Annex VII.

Article 14

Safety and security guidelines and procedures

1.   Member States shall ensure that their inspectors follow the procedures and guidelines specified in Annex VI.

2.   As far as security checks are concerned, Member States shall apply the relevant procedures set out in Annex VI of this Directive to all ships referred to in Articles 3(1), 3(2) and 3(3) of Regulation (EC) No 725/2004, calling at their ports, unless they fly the flag of the port State of inspection.

3.   The provisions of Article 13 of this Directive concerning expanded inspections shall apply to ro-ro ferries and high-speed passenger craft, referred to in Article 2(a) and (b) of Directive 1999/35/EC.

When a ship has been surveyed in accordance with Articles 6 and 8 of Directive 1999/35/EC by a host State which is not the flag State of the ship, such specific survey shall be recorded as a more detailed or an expanded inspection, as relevant, in the inspection database and taken into account for the purposes of Articles 9, 10 and 11 of this Directive and for calculating the fulfilment of the inspection commitment of each Member State in as much as all the items referred to in Annex VII are covered.

Without prejudice to a prevention of operation of a ro-ro ferry or a high-speed passenger craft decided in accordance with Article 10 of Directive 1999/35/EC, the provisions of this Directive concerning rectification of deficiencies, detention, refusal of access, follow-up to inspections, detentions and refusal of access, as appropriate, shall apply.

4.   If necessary, the Commission may, in accordance with the procedure referred to in Article 30(2), adopt the rules for the harmonised implementation of paragraph 1 and 2 of this Article.

Article 15

Access refusal measures concerning certain ships

1.   A Member State shall ensure that any ship which

—

flies the flag of a State whose detention rate falls into the black list, adopted in accordance with the Paris MOU on the basis of information recorded in the inspection database and as published annually by the Commission, and has been detained more than twice in the course of the preceding 36 months in a port of a Member State or of a State signatory of the Paris MOU; or

—

flies the flag of a State whose detention rate falls into the grey list, adopted in accordance with the Paris MOU on basis of information recorded in the inspection database and as published annually by the Commission, and has been detained more than twice in the course of the preceding 24 months in a port of a Member State or of a State signatory of the Paris MOU; or

—	has been issued with a prevention of operation order under Directive 1999/35/EC more than twice in the course of the preceding 36 months in a port of a Member State or of a State signatory of the Paris MOU,

is refused access to its ports, except in the situations described in Article 20(6).

Refusal of access shall become applicable as soon as the ship leaves the port where it has been the subject of a third detention and where a refusal of access order has been issued.

2.   The refusal of access order shall be lifted only after a period of three months has passed from the date of issue of the order and when the conditions in paragraphs 3 to 9 of Annex VIII are met.

If the ship is subject to a second refusal of access, the period shall be 12 months.

3.   Any subsequent detention in a port within the Community shall result in the ship being indefinitely refused access in any port within the Community. The indefinite refusal of access order may be lifted after a period of 36 months has passed from the issue of the order and only if:

—	the ship flies the flag of a State whose detention rate falls neither into the black list nor the grey list referred to in paragraph 1,

—

the statutory and classification certificates of the ship are issued by a organisation or organisations recognised under Council Directive 94/57/EC of 22 November 1994 on common rules and standards for ship inspection and survey organisations and for the relevant activities of maritime administrations (11),

—	the ship is managed by a company with a high performance according to Annex I part I.1, and

—	the conditions in paragraphs 3 to 9 of Annex VIII are met.

4.   For the purpose of this Article, Member States shall comply with the procedures laid down in Annex VIII.

Article 16

Report of inspection to the master

On completion of an inspection, a more detailed inspection or an expanded inspection, the inspector shall draw up a report in accordance with Annex IX. The ship's master shall be provided with a copy of the inspection report.

Article 17

Complaints

All complaints shall be subject to an initial assessment.

Where the competent authority deems the complaint to be manifestly unfounded, it shall inform the complainant of its decision and of the reasons therefor.

The identity of the complainant shall not be revealed to the master or the shipowner of the ship concerned. The inspector shall ensure confidentiality during any interviews of crew members.

Member States shall inform the flag State administration, with a copy to the International Labour Organisation (ILO) if appropriate, of complaints not manifestly unfounded and of follow-up actions taken.

Article 18

Rectification and detention

1.   The competent authority shall be satisfied that any deficiencies confirmed or revealed by the inspection are, or will be, rectified in accordance with the Conventions.

2.   In the case of deficiencies which are clearly hazardous to safety, health or the environment, the competent authority of the port State where the ship is being inspected shall ensure that the ship is detained or that the operation in the course of which the deficiencies are revealed is stopped. The detention order or stoppage of an operation shall not be lifted until the hazard is removed or until such authority establishes that the ship can, subject to any necessary conditions, proceed to sea or the operation be resumed without risk to the safety and health of passengers or crew, or risk to other ships, or without there being an unreasonable threat of harm to the marine environment.

3.   When exercising his professional judgement as to whether or not a ship is to be detained, the inspector shall apply the criteria set out in Annex X.

4.   If the inspection reveals that the ship is not equipped with a functioning voyage data recorder, when use of such recorder is compulsory in accordance with Directive 2002/59/EC, the competent authority shall ensure that the ship is detained.

If such deficiency cannot be readily rectified in the port of detention, the competent authority may either allow the ship to proceed to the appropriate repair yard nearest to the port of detention where it may be readily rectified or require the deficiency to be rectified within a maximum period of 30 days, as provided for in the guidelines developed by the Paris MOU. For these purposes, the procedures laid down in Article 20 shall apply.

5.   In exceptional circumstances, where the overall condition of a ship is obviously substandard, the competent authority may suspend the inspection of that ship until the responsible parties take the steps necessary to ensure that it complies with the relevant requirements of the Conventions.

6.   In the event of detention, the competent authority shall immediately inform, in writing and including the report of inspection, the flag State administration or, when this is not possible, the Consul or, in his absence, the nearest diplomatic representative of that State, of all the circumstances in which intervention was deemed necessary. In addition, nominated surveyors or recognised organisations responsible for the issue of classification certificates or statutory certificates in accordance with Conventions shall also be notified where relevant.

7.   This Directive shall be without prejudice to the additional requirements of the Conventions concerning notification and reporting procedures related to port State control.

8.   When port State control is exercised under this Directive, all possible efforts shall be made to avoid a ship being unduly detained or delayed. If a ship is unduly detained or delayed, the owner or operator shall be entitled to compensation for any loss or damage suffered. In any instance of alleged undue detention or delay the burden of proof shall lie with the owner or operator of the ship.

9.   In order to alleviate port congestion, a competent authority may allow a detained ship to be moved to another part of the port if it is safe to do so. However, the risk of port congestion shall not be a consideration when deciding on a detention or on a release from detention.

Port authorities or bodies shall cooperate with the competent authority with a view to facilitating the accommodation of detained ships.

Article 19

Right of appeal

1.   The owner or operator of a ship or his representative in the Member State shall have a right of appeal against detention or refusal of access by the competent authority. An appeal shall not cause the detention or refusal of access to be suspended.

2.   Member States shall establish and maintain appropriate procedures for this purpose in accordance with their national legislation.

3.   The competent authority shall properly inform the master of a ship referred to in paragraph 1 of the right of appeal.

4.   When, as a result of an appeal or of a request made by the owner or the operator of a ship or his representative, a detention order or a refusal of access order is revoked or amended:

(a)	Member States shall ensure that the inspection database is amended accordingly without delay;

(b)	the Member State where the detention order or refusal of access order is issued shall, within 24 hours of such a decision, ensure that the information published in accordance with Article 25 is rectified.

Article 20

Follow-up to inspections and detentions

1.   Where deficiencies referred to in Article 18(2) cannot be rectified in the port of inspection, the competent authority of that Member State may allow the ship concerned to proceed to the appropriate repair yard nearest to the port of detention where follow-up action can be taken, as chosen by the master and the authorities concerned, provided that the conditions determined by the competent authority of the flag State and agreed by that Member State are complied with. Such conditions shall ensure that the ship can proceed without risk to the safety and health of passengers or crew, or risk to other ships, or without there being an unreasonable threat of harm to the marine environment.

2.   Where the decision to send a ship to a repair yard is due to a lack of compliance with IMO Resolution A.744(18), either with respect to a ship's documentation or with respect to a ship's structural failures and deficiencies, the competent authority may require that the necessary thickness measurements be carried out in the port of detention before the ship is allowed to sail.

3.   In the circumstances referred to in paragraph 1, the competent authority of the Member State in the port of inspection shall notify the competent authority of the State where the repair yard is situated, the parties mentioned in Article 18(6) and any other authority as appropriate of all the conditions for the voyage.

The competent authority of a Member State receiving such notification shall inform the notifying authority of the action taken.

4.   Member States shall take measures to ensure that access to any port within the Community is refused to ships referred to in paragraph 1 which proceed to sea:

(a)	without complying with the conditions determined by the competent authority of any Member State in the port of inspection; or

(b)	which refuse to comply with the applicable requirements of the Conventions by not calling into the indicated repair yard.

Such refusal shall be maintained until the owner or operator provides evidence to the satisfaction of the competent authority of the Member State where the ship was found defective, demonstrating that the ship fully complies with all applicable requirements of the Conventions.

5.   In the circumstances referred to in paragraph 4(a), the competent authority of the Member State where the ship was found defective shall immediately alert the competent authorities of all the other Member States.

In the circumstances referred to in paragraph 4(b), the competent authority of the Member State in which the repair yard lies shall immediately alert the competent authorities of all the other Member States.

Before denying entry, the Member State may request consultations with the flag administration of the ship concerned.

6.   By way of derogation from paragraph 4, access to a specific port may be permitted by the relevant authority of that port State in the event of force majeure or overriding safety considerations, or to reduce or minimise the risk of pollution or to have deficiencies rectified, provided that adequate measures to the satisfaction of the competent authority of such Member State are implemented by the owner, the operator or the master of the ship to ensure safe entry.

Article 21

Professional profile of inspectors

1.   Inspections shall be carried out only by inspectors who fulfil the qualification criteria specified in Annex XI and who are authorised to carry out port State control by the competent authority.

2.   When the required professional expertise cannot be provided by the competent authority of the port State, the inspector of that competent authority may be assisted by any person with the required expertise.

3.   The competent authority, the inspectors carrying out port State control and the persons assisting them shall have no commercial interest either in the port of inspection or in the ships inspected, nor shall the inspectors be employed by, or undertake work on behalf of, non-governmental organisations which issue statutory and classification certificates or which carry out the surveys necessary for the issue of those certificates to ships.

4.   Each inspector shall carry a personal document in the form of an identity card issued by his competent authority in accordance with Commission Directive 96/40/EC of 25 June 1996 establishing a common model for an identity card for inspectors carrying out port State control (12).

5.   Member States shall ensure that the competence of inspectors and their compliance with the minimum criteria referred to in Annex XI are verified, before authorising them to carry out inspections and periodically thereafter in the light of the training scheme referred to in paragraph 7.

6.   Member States shall ensure that inspectors receive appropriate training in relation to changes to the port State control regime as laid down in this Directive and amendments to the Conventions.

7.   In cooperation with Member States, the Commission shall develop and promote a harmonised Community scheme for the training and assessment of competences of port State control inspectors by Member States.

Article 22

Reports from pilots and port authorities

1.   Member States shall take appropriate measures to ensure that their pilots engaged on the berthing or unberthing of ships or engaged on ships bound for a port or in transit within a Member State immediately inform the competent authority of the port State or the coastal State, as appropriate, whenever they learn in the course of their normal duties that there are apparent anomalies which may prejudice the safe navigation of the ship, or which may pose a threat of harm to the marine environment.

2.   If port authorities or bodies, in the course of their normal duties, learn that a ship within their port has apparent anomalies which may prejudice the safety of the ship or poses an unreasonable threat of harm to the marine environment, such authority or body shall immediately inform the competent authority of the port State concerned.

3.   Member States shall require pilots and port authorities or bodies to report at least the following information, in electronic format whenever possible:

—	ship information (name, IMO identification number, Call Sign and flag),

—	sailing information (last port of call, port of destination),

—	description of apparent anomalies found on board.

4.   Member States shall ensure that proper follow-up action is taken on apparent anomalies notified by pilots and port authorities or bodies and shall record the details of action taken.

5.   The Commission may, in accordance with the regulatory procedure referred to in Article 30(2), adopt measures for the implementation of this Article, including a harmonised electronic format and procedures for the reporting of apparent anomalies by pilots and port authorities or bodies and of follow-up action taken by Member States.

Article 23

Inspection database

1.   The Commission shall develop, maintain and update the inspection database, building upon the expertise and experience of the Paris MOU.

The inspection database shall contain all the information required for the implementation of the inspection system set up under this Directive and shall include the functionalities set out in Annex XII.

2.   Member States shall ensure that the information related to inspections performed in accordance with this Directive is transferred to the inspection database as soon as the inspection report is completed or the detention lifted.

Within 72 hours, Member States shall ensure that the information transferred to the inspection database is validated for publication purposes.

3.   On the basis of the inspection data provided by Member States, the Commission shall be able to retrieve from the inspection database any relevant data concerning the implementation of this Directive, in particular on the risk profile of the ship, on ships' due for inspections, on ships' movement data and on the inspection commitments of each Member State.

Member States shall have access to all the information recorded in the inspection database which is relevant for implementing the inspection procedures of this Directive.

Member States and third States Parties to the Paris MOU shall be granted access to any data they have recorded in the inspection database and to data on ships flying their flag.

Article 24

Exchange of information and cooperation

Each Member State shall ensure that its port authorities or bodies and other relevant authorities or bodies provide the competent port State control authority with the following types of information in their possession:

—	information notified in accordance with Article 8 and Annex III,

—

information concerning ships which have failed to notify any information according to the requirements of this Directive, and to Directive 2000/59/EC of the European Parliament and of the Council of 27 November 2000 on port reception facilities for ship-generated waste and cargo residues (13) and Directive 2002/59/EC, as well as, if appropriate, with Regulation (EC) No 725/2004,

—	information concerning ships which have proceeded to sea without having complied with Article 7 or 10 of Directive 2000/59/EC,

—	information concerning ships which have been denied entry or expelled from port on security grounds,

—	information on apparent anomalies in accordance with Article 22.

Article 25

Publication of information

The Commission shall make available and maintain on a public website the information on inspections, detentions and refusals of access in accordance with Annex XIII, building upon the expertise and experience of the Paris MOU.

Article 26

Publication of a list of companies with a low and very low performance

The Commission shall establish and publish regularly on a public website information relating to companies whose performance, in view of determining the ship-risk profile referred to in Annex I part I, has been considered as low and very low for a period of three months or more.

The Commission shall adopt, in accordance with the regulatory procedure referred to in Article 30(2), the rules for the implementation of this Article, specifying in particular the modalities of the publication.

Article 27

Reimbursement of costs

1.   Should the inspections referred to in Articles 12 and 13 confirm or reveal deficiencies in relation to the requirements of a Convention warranting the detention of a ship, all costs relating to the inspections in any normal accounting period shall be covered by the shipowner or the operator or by his representative in the port State.

2.   All costs relating to inspections carried out by the competent authority of a Member State under the provisions of Articles 15 and 20(4) shall be charged to the owner or operator of the ship.

3.   In the case of detention of a ship, all costs relating to the detention in port shall be borne by the owner or operator of the ship.

4.   The detention shall not be lifted until full payment is made or a sufficient guarantee is given for reimbursement of the costs.

Article 28

Data to monitor implementation

Member States shall provide the Commission with the information listed in Annex XIV at the intervals stated in that Annex.

Article 29

Monitoring of compliance and performance of Member States

In order to ensure the effective implementation of this Directive and to monitor the overall functioning of the Community's port State control regime in accordance with Article 2(b)(i) of Regulation (EC) No 1406/2002, the Commission shall collect the necessary information and carry out visits to Member States.

Article 30

Committee procedure

1.   The Commission shall be assisted by the Committee on Safe Seas and the Prevention of Pollution from Ships (COSS) created by Article 3 of Regulation (EC) No 2099/2002 of the European Parliament and of the Council of 5 November 2002 (14).

2.   Where reference is made to this paragraph, Articles 5 and 7 of Decision 1999/468/EC shall apply, having regard to the provisions of Article 8 thereof.

The period laid down in Article 5(6) of Decision 1999/468/EC shall be set at three months.

3.   Where reference is made to this paragraph, Article 5a(1) to (4) and Article 7 of Decision 1999/468/EC shall apply, having regard to the provisions of Article 8 thereof.

Article 31

Amendment procedure

The Commission shall:

(a)	adapt the Annexes, except Annex I, in order to take into account amendments to Community legislation on maritime safety and security which have entered into force, and the Conventions, international codes and resolutions of relevant international organisations and developments in the Paris MOU;

(b)	amend the definitions referring to Conventions, international codes and resolutions and Community legislation which are relevant for the purposes of this Directive.

Those measures, designed to amend non-essential elements of this Directive, shall be adopted in accordance with the regulatory procedure with scrutiny referred to in Article 30(3).

The amendments to the international instruments referred to in Article 2 may be excluded from the scope of this Directive, pursuant to Article 5 of Regulation (EC) No 2099/2002.

Article 32

Implementing rules

When establishing the implementing rules referred to in Articles 7(4), 9(3), 13(3), 14(4), 22(5) and 26 in accordance with the procedures referred to in Article 30(2) and (3), the Commission shall take specific care that these rules take into account the expertise and the experience gained with the inspection system in the Community and the Paris MOU.

Article 33

Penalties

Member States shall lay down a system of penalties for the breach of national provisions adopted pursuant to this Directive and shall take all the measures necessary to ensure that those penalties are applied. The penalties provided for shall be effective, proportionate and dissuasive.

Article 34

Review

The Commission shall review the implementation of this Directive no later than 18 months from … (15). The review will examine, inter alia, the fulfilment of the overall Community inspection commitment laid down in Article 5, the number of port State control inspectors in each Member State, the number of inspections carried out, and the compliance with the annual inspection commitment by each Member State and the implementation of Articles 6 and 7.

The Commission shall communicate the findings of the review to the European Parliament and the Council and shall determine on the basis of the review whether it is necessary to propose an amending Directive or further legislation in this area.

Article 35

Implementation and notification

1.   Member States shall bring into force the laws, regulations and administrative provisions necessary to comply with this Directive by … (16).

2.   When Member States adopt those measures, they shall contain a reference to this Directive or be accompanied by such a reference on the occasion of their official publication. They shall also include a statement that references in existing laws, regulations and administrative provisions to the Directive repealed by this Directive shall be construed as references to this Directive. Member States shall determine how such reference is to be made and how that statement is to be formulated.

3.   Member States shall communicate to the Commission the text of the main provisions of national law adopted in the field covered by this Directive.

4.   In addition, the Commission shall inform the European Parliament and the Council on a regular basis of progress in the implementation of this Directive within the Member States.

Article 36

Repeal

Directive 95/21/EC, as amended by the Directives listed in Annex XV, Part A, is hereby repealed, with effect from … (17), without prejudice to the obligations of Member States relating to the time-limits for transposition into national law of the Directives set out in Annex XV, Part B.

References to the repealed Directive shall be construed as references to this Directive and shall be read in accordance with the correlation table set out in Annex XVI.

Article 37

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 38

Addressees

This Directive is addressed to the Member States.

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(1)  OJ C 318, 23.12.2006, p. 195.

(2)  OJ C 229, 22.9.2006, p. 38.

(3)  Opinion of the European Parliament of 25 April 2007 (not yet published in the Official Journal), Council Common Position of 6 June 2008 and Position of the European Parliament of … (not yet published in the Official Journal).

(4)  OJ L 157, 7.7.1995, p. 1. Directive as last amended by Directive 2002/84/EC of the European Parliament and of the Council (OJ L 324, 29.11.2002, p. 53).

(5)  OJ L 208, 5.8.2002, p. 1. Regulation as last amended by Regulation (EC) No 1891/2006 (OJ L 394, 30.12.2006, p. 1).

(6)  OJ L 138, 1.6.1999, p. 1. Directive as last amended by Directive 2002/84/EC of the European Parliament and of the Council (OJ L 324, 29.11.2002, p. 53).

(7)  OJ L 184, 17.7.1999, p. 23. Decision amended by Decision 2006/512/EC (OJ L 200, 22.7.2006, p. 11).

(8)  OJ C 321, 31.12.2003, p. 1.

(9)  OJ L 129, 29.4.2004, p. 6.

(10)  OJ L 208, 5.8.2002, p. 10.

(11)  OJ L 319, 12.12.1994, p. 20. Directive as last amended by Directive 2002/84/EC (OJ L 324, 29.11.2002, p. 53).

(12)  OJ L 196, 7.8.1996, p. 8.

(13)  OJ L 332, 28.12.2000, p. 81. Directive as last amended by Commission Directive 2007/71/EC (OJ L 329, 14.12.2007, p. 33).

(14)  OJ L 324, 29.11.2002, p. 1. Regulation as last amended by Commission Regulation (EC) No 93/2007 (OJ L 22, 31.1.2007, p. 12).

(15)  The date referred to in Article 35(1).

(16)  36 months after the entry into force of this Directive.

(17)  Date of entry into force of this Directive.

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