Questions and Answers on Maritime safety: new proposals to support clean and modern shipping

What is the aim of the Directive on flag state requirements?

Flag States (the State which registers the ship and under whose law it operates) are the keystone for ensuring maritime safety. Each flag State must take all necessary measures to attest to the ship’s safety and compliance with international rules and regulations, including IMO rules. They are considered the first line of defence in maritime safety.

The revision of Directive 2009/21/EC on compliance with flag State requirements is designed to update and improve the EU legislation to improve safety and pollution prevention from EU ships.

The flag State Directive does not set standards, but rather incorporates into the EU legal framework the regulations and standards set at IMO level.

They require flag States to correctly implement and apply the Conventions and have the resources and powers needed to assume their international obligations and ensure compliance of their flagged ships with these rules.

The proposal provides for a harmonised implementation of these rules, in terms of sharing information on the outcome of Member States’ inspections, promoting the use of electronic certificates, ensure adequate resources are dedicated for enforcement and appropriate training for inspectors as well as sufficient oversight over any outsourced inspection work.

What changes are proposed to the Directive on flag state requirements and why?

The current directive dates back from 2009 and needs to be brought up to date to take account of changes in both the international regulatory environment and technology.

Today’s proposal will introduce the flag-state-relevant parts of the IMO Instruments Implementation Code into EU law, aligning EU obligations with international provisions. This will ensure that EU Member States correctly, effectively and consistently fulfil their obligations as flag States.

In addition, the proposal will support flag State administrations of EU Member States by:

• Providing for more enhanced monitoring of Recognised Organisations (ROs) – private companies or entities that carry out technical survey tasks on ships on behalf of a flag State administration.
• Introducing requirements on digitalisation for flag State inspection reports that ensure better oversight and greater sharing of safety information with other EU Member States and the Commission.
• Requiring that national administrations maintain sufficient oversight of their fleet, thus helping to retain core technical staff for monitoring and carrying out checks on ships, even when these are outsources to third parties.

A Member State group will be established to increase common understanding of flag State issues, to share information, views and experience, including ways to modernise the way in which flag State performance is measured. Finally, the legislation will provide for the provision of capacity-building support by the European Maritime Safety Agency to Member States’ flag State inspectors.

What is the aim of the Directive on port State control?

Port State control is a system of inspection of foreign merchant ships (cargo or passenger) in ports. The checks are intended to verify that crew competence and the condition of the ship and its equipment comply with the requirements of international conventions on the safety of life at sea, working and living conditions on board and on the protection of marine environment. As such, it is a vital part of the maritime safety chain. Port State control is an enforcement tool and the standards that it applies are set at IMO l level (or in some cases by specific EU legislation). Port State control is considered the second line of defence, after flag State.

Port State control in the EU is based on an intergovernmental structure: the Paris Memorandum of Understanding (‘Paris MoU’). All 22 EU Member States with sea-ports, as well as Canada, Iceland, Norway and the United Kingdom are members of the Paris MoU. Russia is also a member, but its membership was suspended in May 2022 following Russia’s war of aggression on Ukraine. EMSA works closely with EU and Paris MoU Member States to implement the port State control regime. On average, over 15,000 port State control inspections are carried out annually by the Paris MoU Member States.

What changes are proposed to the Directive on port State control and why?

The proposal to revise Directive 2009/16/EC seeks to improve the EU port State control regime by aligning it with developments at IMO and Paris MoU level to ensure there are no contradictions between the Member States’ obligations at EU and international level. It will also incorporate two important environmental international legal instruments, namely the IMO Ballast Water Management and the Nairobi Wreck Removal conventions, meaning that ships will now be inspected to check they comply with these Conventions’ provisions.

The proposal further provides for the development of a voluntary port State control regime for those EU Member States that want to inspect larger foreign-flagged fishing vessels (over 24 metres in length).

The amended text will also encourage the uptake and use of electronic ship certificates by providing for a central repository and common validation tool to allow for better prepared and more targeted inspections. Legislative amendments are put forward to address problems which have been encountered in the implementation of the current port State control regime, relating to missed inspections (either for operational or force majeure reasons), the number of inspectors required for more complex inspections and the validation and sharing of inspection reports.

It also requires Member States to have a quality management system to certify its port State control administration organisation, policies, processes, resources and documentation. This is something that is already required for the flag State part of the Member States’ maritime administrations and it should allow the administrations to keep pace with the increasing complexity and requirements of port State control inspections.

What changes are proposed to the Directive on maritime transport accident investigation and why?

Directive 2009/18/EC establishes the fundamental principles governing the investigation of accidents in the maritime transport sector. It integrates the principles of the United Nations Convention of the Law of the Sea, as well as the relevant International Maritime Organisation code, into EU law.

The Directive is being revised to align EU law with changes in international law, to take account of technological change, and to incorporate accident types currently absent from the Directive for example accidents involving port workers which take place on board ships in port. These changes are designed to ensure and improve on the EU’s current high level of maritime safety and pollution protection.

The proposal partially extends the scope of the Directive to bring certain types of accidents involving smaller fishing vessels (less than 15 metres in the length) within the competence of Member States’ accident investigation bodies. These accidents are the most serious, involving death of a crew member or the loss of a vessel.

The revised directive will allow for greater EMSA operational support to accident investigation bodies, upon their request. EMSA will also be able to provide support in the form of training to improve Member State capacity to conduct (and report on) accident investigations in a timely, expert and independent manner – including those involving renewable and low carbon fuels and technologies used on-board ships.

Member States will also be provided with more clarity on the circumstances in which accidents should be investigated. This will allow for a more harmonised approach across the EU. The proposal aligns the directive with the most up to date International Maritime Organization provisions and will also require that Member State’s accident investigation bodies have a certified quality management system in place, similar to what is already required for the flag State administration, and is being proposed in the port State control revision.

What is the aim of the Directive on ship-source pollution?

Directive 2005/35/EC on ship-source pollution, focuses on the enforcement of agreed international standards under the International Convention for the Prevention of Pollution from Ships (MARPOL), which determines whether a discharge is authorised or illegal. The role of the Directive is to ensure that Member States set effective, proportionate, and dissuasive penalties for illegal discharges. It also provides for collaboration on enforcement across the EU with the support of EMSA. The current directive brings some MARPOL international standards into EU law, namely those relating to oil and noxious liquid substances in bulk (MARPOL Annexes I and II).

The proposed revision sets out to update this important piece of environmental protection legislation. This legislation is designed to decrease pollution of the sea from maritime transport by dissuasive penalties and expanding the scope of the directive to cover more polluting substances discharged illegally into the sea including garbage and sewage (MARPOL Annexes I to VI).

What changes are proposed to the Directive on ship-source pollution and why?

The revision of Directive 2005/35/EC will significantly extend the scope to: harmful substances carried by sea in packaged form, sewage, garbage, and discharge water and residues from scrubbers. The proposal clarifies the liability regime applicable under MARPOL and introduces new measures on administrative penalties, without affecting the Environmental Crime Directive[1], currently under inter-institutional negotiations, which will take over the criminal penalties for ship-source pollution offences. In light of the cross-border nature of ship-source pollution, criteria to set penalty levels will also be introduced, ensuring that their deterrent effect is consistent across the EU.

The revision proposes to extend the surveillance services provided by EMSA through ‘CleanSeaNet’ to cover all types of pollutants. To improve information exchange between Member States and the Commission and strengthen enforcement action against pollution, EMSA tools and services such as CleanSeaNet, SafeSeaNet and THETIS will be further optimised and follow-up obligations on potential pollution incidents are provided for. These measures should allow Member States to better target potential pollution and reduce their enforcement costs.

The Commission will assist Member States in implementing the revised directive by assisting the training of relevant national authorities and facilitating whistle-blowers reporting potential pollution incidents. To increase public awareness on ship-source pollution discharges, and improve environmental protection, a regularly updated website containing key non-confidential information will inform the public of the implementation of the Directive.

The proposal also revises the reporting obligations of Member States to allow better monitoring of the implementation of the enforcement system provided by the Directive. To minimise the administrative burden, the development of a single reporting tool for Member State is proposed (to be developed by EMSA).

What changes to the Regulation establishing EMSA are proposed and why?

The revision is a necessary step to make the agency more effective and responsive. The agency’s mandate needs to be revised as it does not properly reflect EMSA’s current scope of activities. This has changed due to the evolving needs of the maritime sector and the new EU regulatory framework in several areas.

The proposed Regulation will reflect EMSA’s new tasks in maritime safety, sustainability, decarbonisation, security and cybersecurity, surveillance, and assistance in crisis management.

How will the Commission support the implementation of the proposed directives?

The Commission services will monitor the implementation and effectiveness of these initiatives through a number of actions.

The port State control Directive, as well as the maritime accident investigation Directive, already require administrations to upload results to the THETIS database, managed by EMSA. The flag State Directive will provide for Member State authorities to also share the result of their flag State inspections.

EMSA also carries out visits to Member States to verify operations on the ground on behalf of the Commission as part of EMSA’s support role to the Commission.

In port State control, flag State compliance and accident investigation, Member States will have to put in place a quality management system. This will have to be certified and subsequently subject to audit every five years.

The more detailed reporting requirements of Member States under the revised ship-source pollution directive will ensure that the Commission collects the necessary information for monitoring the implementation of the Directive, in the interest of minimising pollution from ships in European seas. Implementation can for example be monitored by checking if Member States provide feedback to EMSA-managed CleanSeaNet alerts in a timely and effective manner. The Commission, with support from EMSA, will also develop a public website with core indicators on the implementation rate, and the key non-confidential information on incidents of illegal discharges.

What else is the Commission doing to make maritime shipping cleaner and safer?

On safety matters, the EU has a comprehensive set of legislation which is constantly reviewed. The Commission, supported by EMSA, is engaging with experts from Member States, as well as from other stakeholders, to address current issues, such as containership safety, autonomous shipping, and ships in need of technical assistance, to ensure continuous improvement and enforcement at national, EU and international level.

The Commission works continuously with EU Member States and third country partners in the IMO to help the organisation deliver on higher safety and environmental standards.
Source: European Commission

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