3 Maritime safety: flag state requirements
(27324)
6843/06
COM(05) 586
| Draft Directive on compliance with flag state requirements
|
| Legal base | Article 80(2) EC; co-decision; QMV
|
| Document originated | 23 November 2005
|
| Deposited in Parliament | 2 March 2006
|
| Department | Transport |
| Basis of consideration | EM of 29 June 2006
|
| Previous Committee Report | None
|
| To be discussed in Council | Not known
|
| Committee's assessment | Politically important
|
| Committee's decision | Not cleared. Further information requested
|
Background
3.1 Flag states, that is states which grant ships the right to
fly their flag, have a responsibility as members of the International
Maritime Organization (IMO) to comply with the Organization's
Conventions to which they are party. They must ensure that ships
on their register meet the requirements laid down in those Conventions,
which are designed to promote safety of life at sea and protection
of the marine environment. The key obligations of flag states
are set out in the recently adopted Code for the Implementation
of Mandatory IMO Instruments. Compliance with these obligations
is to be tested by means of an IMO Member State Audit Scheme adopted
in November 2005. But participation in the Audit Scheme is voluntary.
Moreover the IMO has no power of sanction against member states
which do not implement Convention requirements or enforce these
on ships that fly their flag.
The document
3.2 This proposal is part of what the Commission refers to as
the "Third Maritime Safety Package".[14]
This comprises seven discrete measures which are being taken forward
separately, rather than as a package, by the Council. The draft
Directive has not featured on the Austrian Presidency's agenda
(only two of the measures do). It seems unlikely that it will
be taken forward by the Finnish and German Presidencies either.
(We already have the proposals on classification societies, port
state control, vessel traffic monitoring, civil liability and
accident investigations under scrutiny.)[15]
3.3 This draft Directive is intended by the Commission
to ensure the compliance of all Member States with the flag state
obligations set out in the IMO's implementation code. It would
introduce into Community law the main IMO flag state requirements
not yet covered in that law and so extend it. It would require
implementation of the flag state obligations laid out in the IMO's
implementation code. The draft Directive would have the effect
of bringing into Community law a range of flag state responsibilities
covered under international Conventions and thus transfer competence
in these areas from Member States to the Community.
The Government's view
3.4 The Minister of State, Department of Transport
(Dr Stephen Ladyman) says that the draft Directive is intended
to alleviate the problem that the IMO has no power of control
over the application of its rules or the exercise of the discretion
accorded to contracting parties to its Conventions enabling them
to benefit from exemptions or derogations. He then comments that
the performance of Member States performance is variable in terms
of enforcing internationally agreed standards on vessels flying
their flag.
3.5 The Minister elaborates by reference to the Paris
Memorandum of Understanding (MoU), covering most of Europe and
the North Atlantic, under which state parties carry out port state
control inspections of foreign-flag ships calling at their ports.
A ship found to be unsafe will be detained in port until such
time as necessary remedial work has been carried out, or exceptionally
allowed a single voyage to a port of repair. The MoU ranks flag
states according to the likelihood of their ships being detained
— ships on the "black list" present the greatest
risk, those on the "grey list" experience fewer detentions
and those on the "white list" perform best of all. The
Minister tells us:
- the UK is near the top of the
white list;
- other Member States such as Estonia and Poland
are on the grey list;
- of the 18 flag states on the black list, only
one, Slovakia, would, as a Member State, be affected by the proposed
Directive;
- of the candidate countries, Turkey is on the
black list and Bulgaria, Croatia and Romania are on the grey list;
and
- other Community flag states, in particular Malta
and Cyprus, have shown a marked improvement in performance following
accession.
He then notes that a Community measure on flag state
compliance could do nothing to address the problem of under-performing
non-Community flags.
3.6 The Minister comments that ensuring compliance
with the requirements of IMO Conventions is a worthy objective.
But he adds that the Government is unpersuaded that the proposed
Directive is necessary at the moment. He says:
- some enhancements in flag state
compliance are being achieved by non-legislative collective action,
for example by volunteering for the IMO Member State Audit Scheme
(the Government has done this); and
- the European Maritime Safety Agency could be
asked to take on an expanded role in monitoring compliance with
international legislation already in force and in encouraging
improvement of performance among new Member States and candidate
countries.
3.7 More importantly, the Minister says that while
the draft Directive would offer the prospect of greater harmonisation
between the Community's different flag state authorities, the
Government is concerned that a side effect could be a transfer
of competence to the Community. He says that as presented the
proposal could limit the ability of Member States to work independently
in the IMO to enhance safety, security and protection of the marine
environment. By bringing flag state responsibilities under SOLAS,[16]
MARPOL[17] and other
IMO Conventions into Community law there is a risk that individual
Member States would no longer be free to speak with a national
voice on those issues at IMO and that the UK's influence in the
IMO might decline. The Minister concludes on this point that the
Government believes that the Community can best achieve its maritime
objectives of enhancing safety and environmental protection internationally
by effective application of twenty-five independent voices at
IMO rather than a single Community voice, which might or might
not represent the UK view.
3.8 However, despite this concern, the Minister does
not suggest that the draft Directive breaches the principle of
subsidiarity. He says that:
- to the extent that ensuring
full and harmonised application by Member States of international
rules on granting and maintaining flagging rights is unlikely
to be effectively secured by them acting individually, the proposal
is in keeping with the subsidiarity principle; and
- disparities do exist in the extent to which Member
States comply with their international flag state obligations
and the proposal would help to minimise these, if it complements
the measures which can be achieved through non-legislative collective
action.
3.9 The Minister says that, as the proposal would
not impose new obligations on the industry over and above existing
IMO Convention requirements and would not impose additional financial
burdens on the industry, a Regulatory Impact Assessment is not
considered necessary. But he notes that during the UK Presidency
the Government consulted the main international industry organizations.
The industry was:
- wary of the proposal, sharing
the concern of many Member States that it could result in Member
States losing their individual voices at the IMO — an outcome
that most industry organisations do not support; and
- concerned that the proposal would be binding
only on Community (and EEA) flag states, doing nothing to address
the problem of sub-standard ships of the worst under-performing
flags, which are almost exclusively non-Community and which compete
unfairly with Community operators by disregarding international
safety and pollution prevention requirements.
3.10 Finally the Minister tells us that there has
been little appetite amongst other Member States for the proposed
Directive — only one has declared its support for the initiative.
Conclusion
3.11 We realise that it is unlikely that this
proposal will progress in the near future. But when negotiations
do begin we should like to hear from the Government as to how
much success it is having in amending the proposal so as
avoid an unacceptable transfer of competence or, if necessary,
having it rejected. Meanwhile we do not clear the document.
14 (27298) 6219/06 + ADD1: See HC 34-xxiii (2005-06),
para 17 (29 March 2006). Back
15
(27272) 5912/06: See HC 34-xxi (2005-06), para 7 (8 March 2006),
(27238) 5632/06: HC 34-xx (2005-06), para 8 (1 March 2006), (27218)
5171/06: HC 34-xviii (2005-06), para 8 (8 February 2006), (27271)
5907/06: HC 34-xxi (2005-06), para 6 (8 March 2006) and (27305)
6436/06: HC 34-xxiii (2005-06), para 6 (29 March 2006). Back
16
The 1974 International Convention for the Safety of Life at Sea. Back
17
The 1973 International Convention for the Prevention of Pollution
from Ships, as modified by the 1978 Protocol. Back
|
