5 Carriage of passengers and luggage
by sea
| (32332)
17511/10
COM(10) 686
| Amended draft Council Decision concerning the accession of the European Union to the Protocol of 2002 to the Athens Convention Relating to the Carriage of Passengers and their Luggage by Sea, 1974
|
| Legal base | Articles 100(2) and 218 TFEU; co-decision; QMV
|
| Document originated | 30 November 2010
|
| Deposited in Parliament | 13 December 2010
|
| Department | Transport
|
| Basis of consideration | EM of 5 January 2011
|
| Previous Committee Report | None
|
| Discussion in Council | Possibly March 2010
|
| Committee's assessment | Politically and legally important
|
| Committee's decision | Not cleared; further information requested
|
Background
5.1 In November 2002 the Athens Protocol was adopted by the International
Maritime Organization (IMO) to amend the 1974 Athens Convention
relating to the Carriage of Passengers and their Luggage by Sea
(to which the UK is a State Party). The Protocol introduces compulsory
insurance to cover passengers on ships and raises the limits of
liability. It also introduces other mechanisms to assist passengers
in obtaining compensation, based on well-accepted principles applied
in existing liability and compensation regimes dealing with environmental
pollution. These include replacing the fault-based liability system
with a strict liability system for shipping related incidents
(backed by the compulsory insurance requirement) and introducing
the right of direct action against the insurer.
5.2 The Protocol has a provision allowing Regional
Economic Integration Organizations, such as the EU, to become
Contracting Parties to the Protocol.
5.3 The Protocol has provisions on jurisdiction and
the recognition and enforcement of judgements, in respect of which
the EU has internal rules under Council Regulation (EC) No 44/2001,
thereby giving it an exclusive external competence in respect
of at least part of the subject matter of the Protocol.
5.4 In June 2003 the Commission proposed a draft
Decision to authorise the (then) Community to become a Party to
the Protocol and to make the required declaration of competence
in relation to the exclusive competence provisions. In July 2003
a previous Committee cleared that draft Decision from scrutiny.[26]
5.5 Negotiations on the draft Decision were suspended
in December 2003 because Spain had questioned the arrangements
for communicating with the competent authorities in Gibraltar.
This matter was resolved in 2008 when a system of 'post-boxing'
was put in place for communications between Spanish and Gibraltar
authorities.
5.6 To expedite ratification of the Protocol by the
EU and the Member States, Regulation (EC) No 392/2009 was adopted.
It extended the requirements of the Protocol, including compulsory
insurance requirements for international voyages, to domestic
carriage by sea within a single Member State on board ships of
a certain category and, if a Member State so decides, to all domestic
sea-going voyages and introduced a number of supplementary measures
intended to further enhance the provision of compensation to passengers.
The Regulation applies from the date of the entry into force of
the Athens Convention for the EU, and in any case from no later
than 31 December 2012.[27]
The document
5.7 This draft Decision is a revised version of the
Commission's 2003 proposal. The amended draft Decision:
- takes account of the IMO Reservation
and Guidelines for Implementation of the Athens Convention adopted
by the Legal Committee of the IMO in October 2006, of adoption
of Regulation (EC) No 392/2009 and of the Treaty of Lisbon;
- sets out the basis for the EU's competence in
respect of the Athens Convention;
- authorises the Council to conclude the Protocol
on behalf of the EU and defines the basis upon which Member States
are able to become Parties to the Protocol in their own right,
as regards those areas which are within Member State competence;
- provides for the EU, at the time of its accession,
to make the required declaration to the Secretary-General of the
IMO specifying the matters governed by the Protocol, in respect
of which competence has been transferred to the EU by its Member
States, which are signatories or Parties to the Protocol, and
any other relevant restrictions as to the scope of that competence;
and
- contains a provision on timing, which requires
Member States to become a Party to the Protocol on 31 December
2011, whilst the preamble indicates that Member States should
deposit their instruments of ratification or accession simultaneously.
The Government's view
5.8 The Parliamentary Under-Secretary of State, Department
for Transport (Mike Penning) first tells us that Recital 12 and
Article 3 of the draft Decision raise subsidiarity issues, as
these provisions require Member States to deposit their instruments
of accession or ratification on 31 December 2011 and suggest that
Member States should deposit such instruments simultaneously.
The Minister says that:
- ratification of or accession
to a mixed competence agreement by individual Member States, where
they retain competence, is by definition not a matter of EU competence;
- the Government considers that such matters should
not be dealt with in a Council Decision;
- instead an agreement by Member States to aim
at parallel ratification should be dealt with outside the Council,
or at most be a matter for a statement in the minutes, so it becomes
a political rather than a legal matter;
- it is unlikely that there will be support to
have the matter dealt with outside of the Council;
- but the Government will press for the wording
of Recital 12 and Article 3 to refer to Member States making efforts
to deposit their instruments of ratification or accession, rather
than being required to deposit them;
- it would suggest words of exhortation in Article
3 similar to those in respect of the Council Decision 2002/762/EC
authorising Member States to become parties to the Bunkers Convention;[28]
and
- if Recital 12 is not amended similarly there
will be a further significant delay to entry into force of the
Protocol as some Member States (such as those that are land-locked)
are unlikely to be in a position to ratify/accede to the Protocol
by the end of 2011.
5.9 Turning to the other policy implications of the
proposal the Minister says, in relation to timing, that
- the Government considers that
it is important that the EU and its Member States are able to
become Party to the Protocol at the end of 2011;
- to date only four States (Albania, Latvia, St.
Kitts and Nevis and the Syrian Arab Republic) have become Party
to the Protocol;
- if another six Member States deposit instruments
of ratification or accession on, or before, the end of 2011, the
entry into force provisions of the Protocol will be triggered
— it enters into force twelve months following the date
on which a total of ten States have become Party to it and the
Protocol would therefore enter into force at the same time as
Regulation (EC) No 392/2009 applied to Member States;
- this synergy is important — if the EU and
its Member States are not able to become Party to the Protocol
by the time the Regulation applies, Member States will be required
to issue State Certificates, which are identical to those required
by the Protocol, even though the UK and the other Member States
would not be Party to the Protocol;
- this would create a risk that EU-flagged vessels
calling into non-EU ports might be detained by coastal States'
Port State Control Authorities, as the nuances would not be understood;
- there is also a greater risk that carriers would
not be able to obtain insurance to cover the liability because
the International Group of P&I Clubs,[29]
which provide insurance to the majority of the worlds shipping
fleet, have a long standing policy of only providing cover to
vessels on the back of international rather than regional or domestic
agreements;
- the Government therefore welcomes the amended
draft Decision — it is of the view that entry into force
of the Protocol will result in a significant enhancement to the
existing liability regime; and
- the Government is working toward ratification
of the Protocol by 31 December 2011.
5.10 The Minister next discusses competences, saying
that:
- the amended draft Decision
states that Member States have conferred competences on the EU
as regards matters covered by Article 100 TFEU, that is Articles
1 and 1bis, 2(2), 3 to 16 and 18, 20 and 21 of the Athens Convention
(as amended by the Protocol) and the provisions of the IMO Guidelines;
- this competence was exercised by the adoption
of Regulation (EC) No 392/2009;
- the Government agrees with this statement and
supports the need for a Council Decision under Article 218 TFEU
to authorise the Council to conclude the Protocol on behalf of
the EU;
- Recital 3 of the amended draft Decision prescribes
that Member States retain their competence in a number of areas,
giving the example of the ability to fix limits of liability higher
than those prescribed under the Protocol;
- in emphasising this area of Member State competence,
however, the draft Decision indicates that Member States should
act in a coordinated way; and
- in the Governments opinion that is incorrect
— the Decision cannot apply the duty of sincere cooperation
under Article 4(3) TEU to areas of non-EU competence and Member
States must act in a coordinated way only to the extent that to
do otherwise would undermine the EU position.
5.11 In relation to the IMO Reservation and Guidelines
for Implementation of the Athens Convention the Minister
says that:
- whilst the Government notes
that Article 3 of Regulation (EC) No 392/2009 indicates that the
liability regime shall be governed, in part by the provisions
of the IMO Guidelines, it is surprised that the Explanatory Memorandum
accompanying the amended draft Decision indicates that the EU,
rather than its Member States, will make the IMO Reservation,
when acceding to the Protocol;
- in 2006 it was agreed by the IMO's Legal Committee
that carriers will be liable for terrorism related incidents to
a limit of 250,000 units of account[30]
per passenger, subject to an overall limit if $500 million;
- in response to this the IMO Reservation and Guidelines
for Implementation of the Athens Convention was adopted by the
Legal Committee and endorsed by the IMO Assembly — the Reservation
sets out in detail how Governments are to ratify the Protocol,
such that the original provisions of the Protocol will be modified
to give effect to this scheme;
- certain sections of the Reservation, which relate
to areas of EU competence, are of specific relevance to Member
States, for example section 1.10 to 1.12 of the Reservation would
reserve the Government's right to accept and issue insurance certificates
— this would appear to be of more relevance to individual
Member States than the EU; and
- detailed consideration of the practicalities
of the EU making the IMO Reservation when acceding to the Protocol
is therefore required.
5.12 On the legal basis for the Decision the Minister
tells us that the Government considers that Article 81 TFEU should
be cited additionally, saying that:
- this is on the grounds that
Article 81 relates to judicial cooperation in civil matters and
Recital 5 of the draft Decision indicates that Article 10 of the
Protocol (which relates to rules on jurisdiction) will take precedence
over the relevant internal rules of the EU; and
- the Government therefore considers that the Protocol
to Title V TFEU (on the position of the United Kingdom and Ireland
in respect of the area of Freedom, Security and Justice) applies,
so that the UK has an option whether to opt in or opt out of the
proposal.
Conclusion
5.13 Clearly it is important, in relation to Regulation
(EC) No 392/2009, that the EU and Member States accede
to the Athens Protocol before 31 December 2011. However before
considering this amended draft Decision we should like to hear
what progress the Government has made in working group negotiations
about:
- subsidiarity (Recital 12
and Article 3 of the proposal);
- Recital 3 and Article 4(3)
TEU;
- the question of who should make the IMO Reservation;
and
- the additional legal base (Article 81 TFEU).
5.14 We regard the subsidiarity issue as particularly
significant because the duty on the EU and Member States to cooperate
in mixed agreements does not, in our view, allow the EU to decide
when a Member State must accede to a Treaty—this remains
a sovereign matter for the Member States, however, we are not
able to issue a Reasoned Opinion under Protocol (No. 2) because,
pursuant to Article 218 TFEU, the procedure for the conclusion
of an international agreement by the EU is non-legislative, so
not a "legislative act". We regard this as an unsatisfactory
state of affairs.
26 (24691) 10979/03: see HC 63-xxx (2002-03), chapter
14 (16 July 2003). Back
27
(27323) 6827/06 and (29040) 14302/07: see HC 34-xxxvi (2005-06),
chapter 7 (19 July 2006) and HC 16-iv (2007-08), chapter 24 (28
November 2007). Back
28
See http://europa.eu/legislation_summaries/environment/water_protection_management/l24090_en.htm.
Back
29
See http://www.igpandi.org/ - protection and indemnity clubs are
associations of shipowners and charterers, owned and controlled
by their members, operating on a non-profit making mutual basis
in order to meet losses suffered by each individual member. Back
30
The unit of account in the Protocol is the International Monetary
Fund's Standard Drawing Right, which is based on a basket of currencies. Back
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