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| dossier | COM(2023)272 - Wijziging van Richtlijn 2009/21/EG betreffende de naleving van vlaggenstaatverplichtingen. |
|---|---|
| document | COM(2023)272  |
| datum | 1 juni 2023 |
1.5.4.Compatibility with the Multiannual Financial Framework and possible synergies with other appropriate instruments
The proposed revision is a key deliverable of the Communication from the Commission on a Sustainable and Smart Mobility Strategy, which sets out the EU vision for the transport system of the future. The strategy announced that the Commission is planning to initiate a major review of existing legislation on flag State responsibilities, port State control and accident investigation in 2021 (under Flagship 10 - Enhancing transport safety and security).
The proposed revision will create synergies with other pieces of EU regulatory framework, notably the Directive 2009/16/EC on port State control and Directive 2009/18/EC on accident investigation.
The proposal is compatible with the current Multiannual Financial Framework, although it will require reprogramming within Heading 1 as regards the annual contribution to EMSA (budgetary offsetting by a compensatory reduction of programmed spending under CEF Transport (02 03 01)). The budget impact of the current proposal is already included in the budget for the Commission proposal for a Regulation of the European Parliament and of the Council on the European Maritime Safety Agency and repealing Regulation (EC) No 1406/2002.
The budget impact beyond the current MFF is an indicative overview, without prejudice to the future MFF Agreement.
1.5.5.Assessment of the different available financing options, including scope for redeployment
The budgetary impact of this initiative refers to the additional resources necessary for the increasing role of EMSA to facilitate the Flag State’s obligations (i.e. in relation to the e-certificates, develop and maintain a reporting module (THETIS) for use of electronic certificates across flag States and Recognised Organisations, as well as tools for validation and inspection, as well as a module for e-Flag inspection reports, in relation to reporting statistics, further develop a reporting tools/gateway to support the applications, and in relation to the capacity building, develop a common curricula for Flag State inspectors and provide training in new technologies, including but not limited to renewable and low carbon fuels, and automation) under the proposed Directive.
The additional need of human resources cannot be met by redeployment, while the additional budgetary needs will be met through offsetting by existing programmes managed by DG MOVE under the current multiannual financial framework.
The increase in appropriations for EMSA will be offset by a compensatory reduction of programmed spending under CEF Transport (02 03 01). The budget impact of the current proposal is already included in the budget for the Commission proposal for a Regulation of the European Parliament and of the Council on the European Maritime Safety Agency and repealing Regulation (EC) No 1406/2002.
The budget impact beyond the current MFF is an indicative overview, without prejudice to the future MFF Agreement.
1.6.Duration and financial impact of the proposal/initiative
◻ limited duration
–◻ Proposal/initiative in effect from [DD/MM]YYYY to [DD/MM]YYYY
–◻ Financial impact from YYYY to YYYY
☑ unlimited duration
–Implementation with a start-up period from YYYY to YYYY [n.a.]
–followed by full-scale operation.
1.7.Method(s) of budget implementation planned 39
◻ Direct management by the Commission through
–◻ executive agencies
◻ Shared management with the Member States
☑ Indirect management by entrusting budget implementation tasks to:
◻ international organisations and their agencies (to be specified);
◻the EIB and the European Investment Fund;
☑ bodies referred to in Articles 70 and 71;
◻ public law bodies;
◻ bodies governed by private law with a public service mission to the extent that they are provided with adequate financial guarantees;
◻ bodies governed by the private law of a Member State that are entrusted with the implementation of a public-private partnership and that are provided with adequate financial guarantees;
◻ bodies or persons entrusted with the implementation of specific actions in the CFSP pursuant to Title V of the TEU, and identified in the relevant basic act.
Comments
Management of the proposed Directive will be done overall by the Commission services assisted by the European Maritime Safety Agency as appropriate.
Member States will be required to transpose the provisions of the Directive by the respective deadline.
2.MANAGEMENT MEASURES
2.1.Monitoring and reporting rules
Specify frequency and conditions.
The Commission will be overall accountable for implementing the proposed Directive.
EMSA, on behalf of the Commission, carries out visits to Member States to verify operations on the ground. The respective visits reports will identify any shortcomings and areas for improvement.
The Commission and/or EMSA will participate as observers in the International Maritime Organisation Audit, complementary to EMSA’s visits and inspections on behalf of the Commission. EMSA will also carry out a horizontal analysis, giving an indication of how the legislation is functioning and identifying gaps and what can be done to address them, and report to the Commission and Member States, probably discussing the findings in workshops.
The Commission will also establish the flag State expert group to promote the cooperation between the Member States and the Commission.
2.2.Management and control system(s)
2.2.1.Justification of the management mode(s), the funding implementation mechanism(s), the payment modalities and the control strategy proposed
The Commission will be overall accountable for implementing the proposed Directive. The Commission will be assisted by EMSA as appropriate in providing the IT services and developing the IT tools necessary for the reporting, monitoring and verification provisions of the proposed Directive, as well as organising trainings. Member States will be required to carry out the transposition of the Directive to their national legislation by the deadline mentioned in the Directive. Enforcement activities will be carried out as part of the existing controls, in particular during flag State Control and via the flag performance scheme.
2.2.2.Information concerning the risks identified and the internal control system(s) set up to mitigate them
While the Commission will be overall accountable for implementing the proposed Directive, the European Maritime Safety Agency will be responsible for the performance of its operation and for the implementation of its internal control framework. It will be required to develop IT tools and modules, as well as provide training to the Flag State Control officers, and the Member States will be required to carry out enforcement.
EMSA is best placed to carry out reporting and assessment of compliance tasks, as this will be technical work, requiring strong expertise in data management, as well as in-depth understanding of complex technical matters related to electronic certificates and training.
Member States are best placed, also under international law obliagtions, to carry out the enforcement of the proposed Directive, notably by continuing enforcing Flag State control in a harmonized way.
DG MOVE apply the necessary controls in line with the supervision strategy adopted in 2017 on the DG's relations with decentralised agencies and JUs. Under the strategy, DG MOVE monitors performance indicators for the implementation of the budget, the audit recommendations and administrative matters. A report is provided by the Agency on a bi-annual basis. The controls performed on the supervision of the Agency as well as on the related financial and budgetary management are in accordance with DG MOVE’s Control Strategy, updated in 2022.
The additional resources put at the disposal of EMSA will be covered by EMSA’s internal control and risk management system that is aligned with the relevant international standards and includes specific controls to prevent conflict of interests and ensure the protection of whistle-blowers.
2.2.3.Estimation and justification of the cost-effectiveness of the controls (ratio of "control costs ÷ value of the related funds managed"), and assessment of the expected levels of risk of error (at payment & at closure)
Under the proposed revision, additional financing will be provided both to EMSA, which will be developing IT tools and modules, as well as providing training to the Flag State Control officers, and to the Commission.
EMSA has full responsibility for the implementation of their budget, while DG MOVE is responsible for the regular payment of the contributions established by the Budgetary Authority. The expected level of risk of error at payment and at closure is similar to that attached to the budget subsidies provided to the Agency.
The additional tasks resulting from the proposed Directive are not expected to generate specific additional controls. Therefore, the cost of control for DG MOVE (measured against the value of funds managed) is expected to remain stable.
2.3.Measures to prevent fraud and irregularities
Specify existing or envisaged prevention and protection measures, e.g. from the Anti-Fraud Strategy.
The proposed revision contains several provisions specifically targetted at preventing fraud and irregularities. Member States will have to have a Quality Management System (QMS) to certify their organisation, policies, processes, resources and documentation are appropriate to fulfil their responsibilities. This will have to be certified and subsequently subject to periodic audit. Member States will have to share with Commission and/or EMSA the results of the audits carried out by the International Maritime Organisation and accredited body such that the national flag State authorities can retain their QMS certification.
EMSA applies the anti-fraud principles of decentralised EU Agencies, in line with the Commission approach. In March 2021, the Agency adopted an updated Anti-Fraud Strategy, based on the methodology and guidance for anti-fraud strategy presented by OLAF as well as on the Anti-Fraud Strategy of DG MOVE. It provides a framework addressing the issues of prevention, detection and conditions for investigations of fraud at Agency level. EMSA continuously adapts and improves its policies and actions to promote the highest level of integrity of EMSA staff, support effective prevention and detection of fraud risk and establish the appropriate procedures to report and handle potential fraud cases and their outcome. Furthermore, EMSA adopted in 2015 its Conflict of Interest policy for the Management Board.
EMSA cooperates with the Commission services on matters relating to preventing fraud and irregularity. The Commission will ensure that this cooperation will continue and will be strengthened.
3.ESTIMATED FINANCIAL IMPACT OF THE PROPOSAL/INITIATIVE
3.1.Heading(s) of the multiannual financial framework and expenditure budget line(s) affected
·Existing budget lines
In order of multiannual financial framework headings and budget lines.
| Heading of multiannual financial framework | Budget line | Type of expenditure | Contribution | |||
| Number | Diff./Non-diff. 40 | from EFTA countries 41 | from candidate countries and potential candidates 42 | From other third countries | other assigned revenue | |
| 1 | 02 10 02 | Non-diff. | YES | NO | NO | NO |
·New budget lines requested
In order of multiannual financial framework headings and budget lines.
| Heading of multiannual financial framework | Budget line | Type of expenditure | Contribution | |||
| Number | Diff./non-diff. | from EFTA countries | from candidate countries and potential candidates | from other third countries | other assigned revenue | |
| [XX.YY.YY.YY] | YES/NO | YES/NO | YES/NO | YES/NO |
3.2.Estimated impact on expenditure
3.2.1.Summary of estimated impact on expenditure
EUR million (to three decimal places)
| Heading of multiannual financial framework | 1 | Single Market, Innovation and Digital |
| European Maritime Safety Agency (EMSA) | Year 2025 | Year 2026 | Year 2027 | Year 2028-2034 | TOTAL | ||
| Title 1: | Commitments | (1) | 0.171 | 0.342 | 0.342 | 2.394 | 3.249 |
| Payments | (2) | 0.171 | 0.342 | 0.342 | 2.394 | 3.249 | |
| Title 2: | Commitments | (1a) | |||||
| Payments | (2a) | ||||||
| Title 3: | Commitments | (3a) | 0.368 | 1.041 | 1.266 | 4.412 | 7.087 |
| Payments | (3b) | 0.368 | 1.041 | 1.266 | 4.412 | 7.087 | |
| TOTAL appropriations for EMSA | Commitments | =1+1a +3a | 0.539 | 1.383 | 1.608 | 6.806 | 10.336 |
| Payments | =2+2a +3b | 0.539 | 1.383 | 1.608 | 6.806 | 10.336 |
The budget impact beyond the current MFF is an indicative overview, without prejudice to the future MFF Agreement.
Heading of multiannual financial framework | 7 | ‘Administrative expenditure’ |
EUR million (to three decimal places)
| Year N | Year N+1 | Year N+2 | Year N+3 | Enter as many years as necessary to show the duration of the impact (see point 1.6) | TOTAL | ||||
| DG: <…….> | |||||||||
| • Human Resources | |||||||||
| • Other administrative expenditure | |||||||||
| TOTAL DG <…….> | Appropriations |
| TOTAL appropriations under HEADING 7 of the multiannual financial framework | (Total commitments = Total payments) |
EUR million (to three decimal places)
| Year 2025 | Year 2026 | Year 2027 | Year 2028-2034 | TOTAL | |||
| TOTAL appropriations under HEADINGS 1 to 7 of the multiannual financial framework | Commitments | 0.539 | 1.383 | 1.608 | 6.806 | 10.336 | |
| Payments | 0.539 | 1.383 | 1.608 | 6.806 | 10.336 |
The budget impact beyond the current MFF is an indicative overview, without prejudice to the future MFF Agreement.
3.2.2.Estimated impact on EMSA’s appropriations
–☑ The proposal/initiative does not require the use of operational appropriations
–◻ The proposal/initiative requires the use of operational appropriations, as explained below:
Amounts in EUR million (to three decimal places)
| Indicate objectives and outputs ⇩ | Year N | Year N+1 | Year N+2 | Year N+3 | Enter as many years as necessary to show the duration of the impact (see point 1.6) | TOTAL | ||||||||||||
| OUTPUTS | ||||||||||||||||||
| Type 43 | Average cost | No | Cost | No | Cost | No | Cost | No | Cost | No | Cost | No | Cost | No | Cost | Total No | Total cost | |
| SPECIFIC OBJECTIVE No 1 44 … | ||||||||||||||||||
| - Output | ||||||||||||||||||
| - Output | ||||||||||||||||||
| - Output | ||||||||||||||||||
| Subtotal for specific objective No 1 | ||||||||||||||||||
| SPECIFIC OBJECTIVE No 2 ... | ||||||||||||||||||
| - Output | ||||||||||||||||||
| Subtotal for specific objective No 2 | ||||||||||||||||||
| TOTAL COST |
Where applicable, amounts reflect the sum of the Union contribution to the agency and other revenue of the agency (fees and charges).
3.2.3.Estimated impact on EMSA’s human resources
3.2.3.1.Summary
–◻ The proposal/initiative does not require the use of appropriations of an administrative nature
–☑ The proposal/initiative requires the use of appropriations of an administrative nature, as explained below:
EUR million (to three decimal places) Where applicable, amounts reflect the sum of the Union contribution to the agency and other revenue of the agency (fees and charges).
| Year 2025 | Year 2026 | Year 2027 | Year 2028-2034 | TOTAL |
| Temporary agents (AD Grades) | 0.171 | 0.342 | 0.342 | 2.394 | 3.249 |
| Temporary agents (AST grades) | |||||
| Contract staff | |||||
| Seconded National Experts |
| TOTAL | 0.171 | 0.342 | 0.342 | 2.394 | 3.249 |
The budget impact beyond the current MFF is an indicative overview, without prejudice to the future MFF Agreement.
Staff requirements (FTE):
| Year 2025 | Year 2026 | Year 2027 | Year 2028-2034 | TOTAL |
| Temporary agents (AD Grades) | 2 | 2 | 2 | 2 | 2 |
| Temporary agents (AST grades) | |||||
| Contract staff | |||||
| Seconded National Experts |
| TOTAL | 2 | 2 | 2 | 2 | 2 |
The budget impact beyond the current MFF is an indicative overview, without prejudice to the future MFF Agreement.
EMSA will start preparing the recruitment as soon as the proposal is adopted. The costs are estimated based on the assumption that the 2 FTEs are recruited as of 1st July 2025. So only 50% of the HR costs are needed for the first year.
3.2.3.2.Estimated requirements of human resources for the parent DG
–☑ The proposal/initiative does not require the use of human resources.
–◻ The proposal/initiative requires the use of human resources, as explained below:
Estimate to be expressed in full amounts (or at most to one decimal place)
| Year N | Year N+1 | Year N+2 | Year N+3 | Enter as many years as necessary to show the duration of the impact (see point 1.6) | ||||
| ·Establishment plan posts (officials and temporary staff) | ||||||||
| 20 01 02 01 and 20 01 02 02 (Headquarters and Commission’s Representation Offices) | ||||||||
| 20 01 02 03 (Delegations) | ||||||||
| 01 01 01 01 (Indirect research) | ||||||||
| 10 01 05 01 (Direct research) | ||||||||
| • External staff (in Full Time Equivalent unit: FTE) 45 | ||||||||
| 20 02 01 (AC, END, INT from the ‘global envelope’) | ||||||||
| 20 02 03 (AC, AL, END, INT and JPD in the Delegations) | ||||||||
| Budget line(s) (specify) 46 | - at Headquarters 47 | |||||||
| - in Delegations | ||||||||
| 01 01 01 02 (AC, END, INT – Indirect research) | ||||||||
| 10 01 05 02 (AC, END, INT – Direct research) | ||||||||
| Other budget lines (specify) | ||||||||
| TOTAL |
The human resources required will be met by staff from the DG who are already assigned to management of the action and/or have been redeployed within the DG, together if necessary with any additional allocation which may be granted to the managing DG under the annual allocation procedure and in the light of budgetary constraints.
Description of tasks to be carried out:
| Officials and temporary staff | |
| External staff |
Description of the calculation of cost for FTE units should be included in the Annex V, section 3.
3.2.4.Compatibility with the current multiannual financial framework
–☑ The proposal/initiative is compatible the current multiannual financial framework.
–☑ The proposal/initiative will entail reprogramming of the relevant heading in the multiannual financial framework.
The tasks allocated to EMSA will require reprogramming of the budget line for the annual contribution to the Agency (02 10 02) under the current multiannual financial framework. The increase in appropriations for EMSA will be offset by a compensatory reduction of programmed spending under CEF Transport (02 03 01) under the current multiannual financial framework. The budget impact beyond the current MFF is an indicative overview, without prejudice to the future MFF Agreement.
–◻ The proposal/initiative requires application of the flexibility instrument or revision of the multiannual financial framework 48 .
Explain what is required, specifying the headings and budget lines concerned and the corresponding amounts.
3.2.5.Third-party contributions
–The proposal/initiative does not provide for co-financing by third parties.
–The proposal/initiative provides for the co-financing estimated below:
EUR million (to three decimal places)
| Year N | Year N+1 | Year N+2 | Year N+3 | Enter as many years as necessary to show the duration of the impact (see point 1.6) | Total | |||
| Specify the co-financing body | ||||||||
| TOTAL appropriations co-financed |
3.3.Estimated impact on revenue
–☑ The proposal/initiative has no financial impact on revenue.
–◻ The proposal/initiative has the following financial impact:
on own resources
on other revenue
please indicate, if the revenue is assigned to expenditure lines
EUR million (to three decimal places)
| Budget revenue line: | Appropriations available for the current financial year | Impact of the proposal/initiative 49 | ||||||
| Year N | Year N+1 | Year N+2 | Year N+3 | Enter as many years as necessary to show the duration of the impact (see point 1.6) | ||||
| Article …………. |
For miscellaneous ‘assigned’ revenue, specify the budget expenditure line(s) affected.
Specify the method for calculating the impact on revenue.
(1) OJ L 131, 28.5.2009, p. 132–135
(2) UNCLOS was signed in 1982. The European Union ratified in 1984. https://www.un.org/Depts/los/convention_agreements/texts/unclos/UNCLOS-TOC.htm
(3) While the jurisdiction and enforcement on board is that of the nation flag, the development of the rules and regulations are done at international level by the International Maritime Organization (www.imo.org). IMO is a United Nations specialised agency; all EU Member States are IMO members. The European Union is not a member but the Commission holds observer status as an Intergovernmental Organisation (IGO) among many other such.
(4) International rules include for example the International Convention for the Safety of Life at Sea (SOLAS 74), International Convention for the Prevention of Pollution from Ships (MARPOL 73/78), Standards of Training, Certification and Watchkeeping (STCW), the International Convention on Load Lines, 1966, the Convention on the International Regulations for Preventing Collisions at Sea, 1972 (COLREG 72) etc. Rules related to working and living conditions on-board ships are promulgated by another UN agency, the International Labour Organisation (ILO).
(5) When ‘safety’ is referred to, this generally includes safety, security and pollution prevention.
(6) Have all relevant certificates issued by the flag State for the type of ships, before it starts operating.
(7) The ‘flag State’ of a vessel is the jurisdiction under whose laws the vessel is registered, it is the nationality of the vessel. UNCLOS stipulates that a ship can fly only one flag of a State and is subject to the exclusive jurisdiction of that flag State which is responsible for its conduct and its compliance with safety and environmental protection requirements.
(8) OJ L 131, 28.5.2009, p. 114
(9) As required by the Harmonised System for Survey and Certification (HSSC, IMO Resolution A.1140(31), 2019)
(10) It is only with such statutory safety certificates that the ship can get insurance; without insurance the ship can normally not sail.
(11) Regulation (EC) No 391/2009 and Directive 2009/15/EC
(12) OJ C 466, 7.12.2022, p. 24–24
(13) However, the IMO has no enforcement powers.
(14) Directive 2013/54/EU of the European Parliament and of the Council of 20 November 2013 concerning certain flag State responsibilities for compliance with and enforcement of the Maritime Labour Convention, 2006 (OJ L 329, 10.12.2013, p. 1–4)
(15) Established by Directive 2002/59/EC
(16) Directive (EU) 2017/2110 of 15 November 2017 on a system of inspections for the safe operation of ro-ro passenger ships and high-speed passenger craft in regular service and amending Directive 2009/16/EC and repealing Council Directive 1999/35/EC (OJ L 315, 30.11.2017)
(17) OJ L 131, 28.5.2009, p. 57
(18) OJ L 131, 28.5.2009, p. 114
(19) Regulation (EC) No 391/2009 on common rules and standards for ship inspection and survey organisations (OJ L 131, 28.5.2009, p.11) and Directive 2009/15/EC on common rules and standards for ship inspection and survey organisations and for the relevant activities of maritime administrations (OJ L131, 28.5.2009, p.47)
(20) Directive 2002/59/EC establishing a Community vessel traffic monitoring and information system (OJ L 208, 5.8.2002, p. 10)
(21) OJ L 208, 5.8.2002, p. 1
(22) Directive (EU) 2017/2110 on a system of inspections for the safe operation of ro-ro passenger ships and high-speed passenger craft in regular service (OJ L 315, 30.11.2017, p. 61)
(23) The matter is formally and legally Union exclusive competence as recognised by Council Decision 2013/268/EU, setting out the Union position that had to be followed by Member States in IMO at the time (in 2013) of agreeing the III-Code and IMO audit.
(24) SWD (2018) 232 final
(25) SWD (2018) 228 final
(26) EMSA carries out such visits under Article 3 of Regulation (EC) No 1406/2002 establishing a European Maritime Safety Agency as part of its core tasks; therefore, no additional costs are expected to arise.
(27) OJ C , , p. .
(28) OJ C , , p. .
(29) Directive 2009/18/EC of the European Parliament and of the Council of 23 April 2009 establishing the fundamental principles governing the investigation of accidents in the maritime transport sector and amending Council Directive 1999/35/EC and Directive 2002/59/EC of the European Parliament and of the Council (OJ L 131, 28.5.2009, p. 114)
(30) 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 and repealing Council Directive 93/75/EEC (OJ L 208 5.8.2002, p. 10).
(31) Regulation (EC) 1406/2002 of the European Parliament and of the Council of 27 June 2002 establishing a European Maritime Safety Agency (OJ L 208 5.8.2002, p. 1).
(32) OJ L 123, 12.5.2016, p. 1.
(33) Regulation (EU) No 182/2011 of the European Parliament and of the Council of 16 February 2011 laying down the rules and general principles concerning mechanisms for control by the Member States of the Commission's exercise of implementing powers (OJ L 55, 28.2.2011, p. 13).
(34) Directive 2009/16/EC of the European Parliament and of the Council of 23 April 2009 on port State control (OJ L 131, 28.5.2009, p. 57).
(35) 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 and repealing Council Directive 93/75/EEC (OJ L 208 5.8.2002, p. 10).
(36) Regulation (EC) 1406/2002 of the European Parliament and of the Council of 27 June 2002 establishing a European Maritime Safety Agency (OJ L 208 5.8.2002, p. 1).
(37) Regulation (EU) xx/xx of the European Parliament and of the Council … [EMSA Regulation]
(38) As referred to in Article 58(2)(a) or (b) of the Financial Regulation.
(39) Details of budget implementation methods and references to the Financial Regulation may be found on the BUDGpedia site: https://myintracomm.ec.europa.eu/corp/budget/financial-rules/budget-implementation/Pages/implementation-methods.aspx
(40) Diff. = Differentiated appropriations / Non-diff. = Non-differentiated appropriations.
(41) EFTA: European Free Trade Association.
(42) Candidate countries and, where applicable, potential candidates from the Western Balkans.
(43) Outputs are products and services to be supplied (e.g.: number of student exchanges financed, number of km of roads built, etc.).
(44) As described in point 1.4.2. ‘Specific objective(s)…’
(45) AC = Contract Staff; AL = Local Staff; END = Seconded National Expert; INT = agency staff; JPD = Junior Professionals in Delegations.
(46) Sub-ceiling for external staff covered by operational appropriations (former ‘BA’ lines).
(47) Mainly for the EU Cohesion Policy Funds, the European Agricultural Fund for Rural Development (EAFRD) and the European Maritime Fisheries and Aquaculture Fund (EMFAF).
(48) See Articles 12 and 13 of Council Regulation (EU, Euratom) 2020/2093 of 17 December 2020 laying down the multiannual financial framework for the years 2021 to 2027.
(49) As regards traditional own resources (customs duties, sugar levies), the amounts indicated must be net amounts, i.e. gross amounts after deduction of 20 % for collection costs.
Top
EUROPEAN COMMISSION
Brussels, 1.6.2023
COM(2023) 272 final
ANNEX
to the
Proposal for a Directive of the European Parliament and of the Council
amending Directive 2009/21/EC on compliance with flag State requirements
{SEC(2023) 210 final} - {SWD(2023) 165 final} - {SWD(2023) 166 final}
ANNEX
‘ANNEX
Resolution A.1070(28)
(adopted on 4 December 2013)
IMO INSTRUMENTS IMPLEMENTATION CODE (III CODE)
PART 1 – COMMON AREAS
Objective
1.The objective of this Code is to enhance global maritime safety and protection of the
marine environment and assist States in the implementation of instruments of the Organization.
2.Different States will view this Code according to their own circumstances and should
be bound only for the implementation of those instruments to which they are Contracting
Governments or Parties. By virtue of geography and circumstance, some States may have a
greater role as a flag State than as a port State or as a coastal State, whilst others may have
a greater role as a coastal State or a port State than as a flag State.
Strategy
3. In order to meet the objective of this Code, a State is recommended to:
.1 develop an overall strategy to ensure that its international obligations and responsibilities as a flag, port and coastal State are met;
.2 establish a methodology to monitor and assess that the strategy ensureseffective implementation and enforcement of relevant international mandatory instruments; and
.3 continuously review the strategy to achieve, maintain and improve the overall organizational performance and capability as a flag, port and coastal State.
General
4.Under the general provisions of treaty law and of IMO conventions, States should be
responsible for promulgating laws and regulations and for taking all other steps which may
be necessary to give those instruments full and complete effect so as to ensure safety of life
at sea and protection of the marine environment.
5.In taking measures to prevent, reduce and control pollution of the marine
environment, States should act so as not to transfer, directly or indirectly, damage or hazards
from one area to another or transform one type of pollution into another.
Scope
6.The Code seeks to address those aspects necessary for a Contracting Government
or Party to give full and complete effect to the provisions of the applicable international
instruments to which it is a Contracting Government or Party, pertaining to:
.1 safety of life at sea;
.2 prevention of pollution from ships;
.3 standards of training, certification and watchkeeping for seafarers;
.4 load lines;
.5 tonnage measurement of ships; and
.6 regulations for preventing collisions at sea.
7.The following areas should be considered and addressed in the development of
policies, legislation, associated rules and regulations and administrative procedures for the
implementation and enforcement of those obligations and responsibilities by the State:
.1 jurisdiction;
.2 organization and authority;
.3 legislation, rules and regulations;
.4 promulgation of the applicable international mandatory instruments, rulesand regulations;
.5 enforcement arrangements;
.6 control, survey, inspection, audit, verification, approval and certificationfunctions;
.7 selection, recognition, authorization, empowerment and monitoring ofrecognized organizations, as appropriate, and of nominated surveyors;
.8 investigations required to be reported to the Organization; and
.9 reporting to the Organization and other Administrations.
Initial actions
8.When a new or amended instrument of the Organization enters into force for a
State, the Government of that State should be in a position to implement and enforce its
provisions through appropriate national legislation and to provide the necessary
implementation and enforcement infrastructure. This means that the Government of the
State should have:
.1 the ability to promulgate laws, which permit effective jurisdiction and controlin administrative, technical and social matters over ships flying its flag and,in particular, provide the legal basis for general requirements for registries,the inspection of ships, safety and pollution prevention laws applying tosuch ships and the making of associated regulations;
.2 a legal basis for the enforcement of its national laws and regulations
including the associated investigative and penal processes; and
.3 the availability of sufficient personnel with maritime expertise to assist in the
promulgation of the necessary national laws and to discharge all the
responsibilities of the State, including reporting as required by the
respective conventions.
Communication of information
9.The State should communicate its strategy, as referred to in paragraph 3, including
information on its national legislation to all concerned.
Records
10.Records, as appropriate, should be established and maintained to provide evidence
of conformity to requirements and of the effective operation of the State. Records should
remain legible, readily identifiable and retrievable. A documented procedure should be
established to define the controls needed for the identification, storage, protection, retrieval,
retention time and disposition of records.
Improvement
11.States should continually improve the adequacy of the measures which are taken to
give effect to those conventions and protocols which they have accepted. Improvement
should be made through rigorous and effective application and enforcement of national
legislation, as appropriate, and monitoring of compliance.
12.The State should stimulate a culture which provides opportunities for improvement
of performance in maritime safety and environmental protection activities, which may include, inter alia:
.1 continual training programmes relating to safety and pollution prevention;
.2 regional and national drills on safety and pollution prevention, which engage a broad spectrum of maritime-related national, regional and international organizations, companies and seafarers; and
.3 using reward and incentive mechanisms for shipping companies and seafarers regarding improving safety and pollution prevention.
13.Further, the State should take action to identify and eliminate the cause of any
non-conformities in order to prevent recurrence, including:
.1 review and analysis of non-conformities;
.2 implementation of necessary corrective action; and
.3 review of the corrective action taken.
14.The State should determine action needed to eliminate the causes of potential
non-conformities in order to prevent their occurrence.
PART 2 - FLAG STATES
15.In order to effectively discharge their responsibilities and obligations, flag States should:
.1 implement policies through issuing national legislation and guidance, which will assist in the implementation and enforcement of the requirements of all safety and pollution prevention conventions and protocols to which they are parties; and
.2 assign responsibilities within their Administrations to update and revise any relevant policies adopted, as necessary.
16.A flag State should establish resources and processes capable of administering a safety and environmental protection programme, which, as a minimum, should consist of the following:
.1 administrative instructions to implement applicable international rules and regulations as well as developing and disseminating any interpretative national regulations that may be needed including certificates issued by a classification society, which is recognized by the flag State in accordance with the provisions of SOLAS regulation XI-1/1, and which certificate is required by the flag State to demonstrate compliance with structural, mechanical, electrical, and/or other requirements of an international convention to which the flag State is a party or compliance with a requirement of the flag State's national regulations;
.2 compliance with the requirements of the applicable international instruments, using an audit and inspection programme, independent of any administrative bodies issuing the required certificates and relevant documentation and/or of any entity which has been delegated authority by the State to issue the required certificates and relevant documentation;
.3 compliance with the requirements related to international standards of training, certification and watchkeeping of seafarers. This includes, inter alia:
.1 training, assessment of competence and certification of seafarers;
.2 certificates and endorsements that accurately reflect the competencies of the seafarers, using the appropriate terminology as well as terms that are identical to those used in any safe manning document issued to the ship;
.3 impartial investigation to be held of any reported failure, whether by act or omission that may pose a direct threat to safety of life or property at sea or to the marine environment, by the holders of certificates or endorsements issued by the State;
.4 arrangements for the withdrawal, suspension or cancellation of certificates or endorsements issued by the State when warranted and when necessary to prevent fraud; and
.5 administrative arrangements, including those involving training, assessment and certification activities conducted under the purview of another State, which are such that the flag State accepts its responsibility for ensuring the competence of masters, officers and other seafarers serving on ships entitled to fly its flag;
.4 the conduct of investigations into casualties and adequate and timely handling of cases involving ships with identified deficiencies; and
.5 the development, documentation and provision of guidance concerning those requirements found in the relevant international instruments that are to the satisfaction of the Administration.
17. A flag State should ensure that ships entitled to fly its flag are sufficiently and efficiently manned, taking into account relevant and existing measures such as the Principles of Safe Manning adopted by the Organisation.
Delegation of authority
18.With regard only to ships entitled to fly its flag a flag State authorizing a recognized organization to act on its behalf, in conducting the surveys, inspections and audits, issuing of certificates and documents, marking of ships and other statutory work required under the conventions of the Organization or under its national legislation, should regulate such authorization(s) in accordance with the applicable requirements of the international mandatory instruments to:
.1 determine that the recognized organization has adequate resources in terms of technical, managerial and research capabilities to accomplish the tasks being assigned, in accordance with the required standards for recognized organizations acting on behalf of the Administration set out in the relevant instruments of the Organization;
.2 have as its basis a formal written agreement between the Administration and the recognized organization which, as a minimum, includes the elements set out in the relevant instruments of the Organization, or equivalent legal arrangements, and which may be based on the model agreement for the authorization of recognized organizations acting on behalf of the Administration;
.3 issue specific instructions detailing actions to be followed in the event that a ship is found unfit to proceed to sea without danger to the ship or persons on board, or is found to present an unreasonable threat of harm to the marine environment;
.4 provide the recognized organization with all appropriate instruments of national law and interpretations thereof giving effect to the provisions of the conventions and specify, only for application to ships entitled to fly its flag, whether any additional standards of the Administration go beyond convention requirements in any respect; and
.5 require that the recognized organization maintain records, which will provide the Administration with data to assist in interpretation of requirements contained in the applicable international instruments.
19.No flag State should mandate its recognized organizations to apply to ships, other than those entitled to fly its flag, any requirement pertaining to their classification rules, requirements, procedures or performance of other statutory certification processes, beyond convention requirements and the mandatory instruments of the Organization.
20.The flag State should establish or participate in an oversight programme with adequate resources for monitoring of, and communication with, its recognized organization(s) in order to ensure that its international obligations are fully met, by:
.1 exercising its authority to conduct supplementary surveys to ensure that ships entitled to fly its flag effectively comply with the requirements of the applicable international instruments;
.2 conducting supplementary surveys as it deems necessary to ensure that ships entitled to fly its flag comply with national requirements, which supplement the international mandatory requirements; and
.3 providing staff who have a good knowledge of the rules and regulations of the flag State and those of the recognized organizations and who are available to carry out effective oversight of the recognized organizations.
21.A flag State nominating surveyor(s) for the purpose of carrying out surveys, audits and inspections on its behalf should regulate such nominations, as appropriate, in accordance with the guidance provided in paragraph 18, in particular subparagraphs .3 and .4.
Enforcement
22.A flag State should take all necessary measures to secure observance of international rules and standards by ships entitled to fly its flag and by entities and persons under its jurisdiction so as to ensure compliance with its international obligations. Such measures should include, inter alia:
.1 prohibiting ships entitled to fly its flag from sailing until such ships can proceed to sea in compliance with the requirements of international rules and standards;
.2 the periodic inspection of ships entitled to fly its flag to verify that the actual condition of the ship and its crew is in conformity with the certificates it carries;
.3 the surveyor to ensure, during the periodic inspection referred to in subparagraph .2, that seafarers assigned to the ships are familiar with:
.1 their specific duties; and
.2 ship arrangements, installations, equipment and procedures;
.4 ensuring that the ship's complement, as a whole, can effectively coordinate activities in an emergency situation and in the performance of functions vital to safety or to the prevention or mitigation of pollution;
.5 providing, in national laws and regulations, for penalties of adequate severity to discourage violation of international rules and standards by ships entitled to fly its flag;
.6 instituting proceedings, after an investigation has been conducted, against ships entitled to fly its flag, which have violated international rules and standards, irrespective of where the violation has occurred;
.7 providing, in national laws and regulations, for penalties of adequate severity to discourage violations of international rules and standards by individuals issued with certificates or endorsements under its authority; and
.8 instituting proceedings, after an investigation has been conducted, against individuals holding certificates or endorsements who have violated international rules and standards, irrespective of where the violation has occurred.
23.A flag State should develop and implement a control and monitoring programme, as appropriate, in order to:
.1 provide for prompt and thorough casualty investigations, with reporting to the Organization as appropriate;
.2 provide for the collection of statistical data, so that trend analyses can be conducted to identify problem areas; and
.3 provide for a timely response to deficiencies and alleged pollution incidents reported by port or coastal States.
24.Furthermore, the flag State should:
.1 ensure compliance with the applicable international instruments through national legislation;
.2 provide an appropriate number of qualified personnel to implement and enforce the national legislation referred to in subparagraph 15.1, including personnel for performing investigations and surveys;
.3 provide a sufficient number of qualified flag State personnel to investigate incidents where ships entitled to fly its flag have been detained by port States;
.4 provide a sufficient number of qualified flag State personnel to investigate incidents where the validity of a certificate or endorsement or of the competence of individuals holding certificates or endorsements issued under its authority are questioned by port States; and
.5 ensure the training and oversight of the activities of flag State surveyors and investigators.
25.When a flag State is informed that a ship entitled to fly its flag has been detained by a port State, the flag State should oversee that appropriate corrective measures are taken to bring the ship in question into immediate compliance with the applicable international instruments.
26.A flag State, or a recognized organization acting on its behalf, should only issue or endorse an international certificate to a ship after it has determined that the ship meets all applicable requirements.
27.A flag State should only issue an international certificate of competency or endorsement to a person after it has determined that the person meets all applicable requirements.
Flag State surveyors
28.The flag State should define and document the responsibilities, authority and interrelation of all personnel who manage, perform and verify work relating to and affecting safety and pollution prevention.
29.Personnel responsible for, or performing surveys, inspections and audits on ships and companies covered by the relevant international mandatory instruments should have as a minimum the following:
.1 appropriate qualifications from a marine or nautical institution and relevant seagoing experience as a certificated ship’s officer holding or having held a valid management level certificate of competency and having maintained their technical knowledge of ships and their operation since gaining their certificate of competency; or
.2 a degree or equivalent from a tertiary institution within a relevant field of engineering or science recognized by the flag State; or
.3 accreditation as a surveyor through a formalized training programme that leads to the same standard of surveyor's experience and competency as that required in paragraphs 29.1, 29.2 and 32.
30.Personnel qualified under paragraph 29.1 should have served for a period of not less than three years at sea as an officer in the deck or engine department.
31.Personnel qualified under paragraph 29.2 should have worked in a relevant capacity for at least three years.
32.In addition, such personnel should have appropriate practical and theoretical knowledge of ships, their operation and the provisions of the relevant national and international instruments necessary to perform their duties as flag State surveyors obtained through documented training programmes.
33.Other personnel assisting in the performance of such work should have education, training and supervision commensurate with the tasks they are authorized to perform.
34.Previous relevant experience in the field of expertise is recommended to be considered an advantage; in case of no previous experience, the Administration should provide appropriate field training.
35.The flag State should implement a documented system for qualification of personnel and continuous updating of their knowledge as appropriate to the tasks they are authorized to undertake.
36.Depending on the function(s) to be performed, the qualifications should encompass:
.1 knowledge of applicable, international and national, rules and regulations for ships, their companies, their crew, their cargo and their operation;
.2 knowledge of the procedures to be applied in survey, certification, control, investigative and oversight functions;
.3 understanding of the goals and objectives of the international and national instruments dealing with maritime safety and protection of the marine environment, and of related programmes;
.4 understanding of the processes both on board and ashore, internal as well as external;
.5 possession of professional competency necessary to perform the given tasks effectively and efficiently;
.6 full safety awareness in all circumstances, also for one's own safety; and
.7 training or experience in the various tasks to be performed and preferably also in the functions to be assessed.
37.The flag State should issue an identification document for the surveyor to carry when performing his/her tasks.
Flag State investigations
38.Marine safety investigations should be conducted by impartial and objective investigators, who are suitably qualified and knowledgeable in matters relating to the casualty. Subject to any agreement on which State or States will be the marine safety investigating State(s), the flag State should provide qualified investigators for this purpose, irrespective of the location of the casualty or incident.
39.The flag State is recommended to ensure that individual investigators have working knowledge and practical experience in those subject areas pertaining to their normal duties. Additionally, in order to assist individual investigators in performing duties outside their normal assignments, the flag State is recommended to ensure ready access to expertise in the following areas, as necessary:
.1 navigation and the Collision Regulations;
.2 flag State regulations on certificates of competency;
.3 causes of marine pollution;
.4 interviewing techniques;
.5 evidence gathering; and
.6 evaluation of the effects of the human element.
40.It is recommended that any accident involving personal injury necessitating absence from duty of three days or more and any deaths resulting from occupational accidents and casualties to ships of the flag State should be investigated, and the results of such investigations made public.
41.Ship casualties should be investigated and reported in accordance with the relevant international instruments, taking into account the Casualty Investigation Code, as may be amended, and guidelines developed by the Organization. The report on the investigation should be forwarded to the Organization together with the flag State's observations, in accordance with the guidelines referred to above.
Evaluation and review
42.A flag State should, on a periodic basis, evaluate its performance with respect to the implementation of administrative processes, procedures and resources necessary to meet its obligations as required by the international instruments to which it is a party.
43.Measures to evaluate the performance of flag States should include, inter alia, port State control detention rates, flag State inspection results, casualty statistics, communication and information processes, annual loss statistics (excluding constructive total losses (CTLs)) and other performance indicators as may be appropriate, in order to determine whether staffing, resources and administrative procedures are adequate to meet its flag State obligations.
44.Areas recommended for regular review may include, inter alia:
.1 fleet loss and accident ratios to identify trends over selected time periods;
.2 the number of verified cases of detained ships in relation to the size of the fleet;
.3 the number of verified cases of incompetence or wrongdoing by individuals holding certificates or endorsements issued under the flag State’s authority;
.4 responses to port State deficiency reports or interventions;
.5 investigations into very serious and serious casualties and lessons learned from them;
.6 technical and other resources committed;
.7 results of inspections, surveys and controls of the ships in the fleet;
.8 investigation of occupational accidents;
.9 the number of incidents and violations that occur under the applicable international maritime pollution prevention regulations; and
.10 the number of suspensions or withdrawals of certificates, endorsements, approvals, or similar.’
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