3 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; assent; QMV
|
| Department | Transport
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| Basis of consideration | Minister's letter of 14 February 2011
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| Previous Committee Report | HC 428-xiii (2010-11), chapter 5 (19 January 2011)
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| Discussion in Council | 31 March 2010
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| Committee's assessment | Legally and politically important
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| Committee's decision | Not cleared, further information requested
|
Background
3.1 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.
3.2 The Protocol has a provision allowing Regional
Economic Integration Organizations, such as the EU, to become
Contracting Parties to the Protocol.
3.3 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.
3.4 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.[15]
3.5 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.
3.6 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.[16]
3.7 This present 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.
3.8 When we considered this proposal, in January
2011, we heard from the Government about a number of matters it
was pursuing during working party negotiations. We said that before
considering the draft Decision further we wished to have an account
of any progress in those 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
- an additional legal base (Article 81 TFEU).
The Minister's letter of 14 February
3.9 The Parliamentary Under-Secretary of State, Department
for Transport (Mike Penning), in reporting progress, tells us
first that the Government has made significant progress on issues
of subsidiarity; saying that:
- both Recital 12 and Article
3 of the draft Decision, relating to Member State ratification,
have been the subject of substantive discussion and have been
amended;
- the UK and other like-minded Member States believe
that they have successfully resisted the Commission's attempts
to push through a Council Decision which would have required Member
States to ratify the Protocol in a particular way;
- the Government proposed language which has been
used previously in a Council Decision authorising Member States
to become Party to the Bunkers Convention;[17]
- whilst this language requires Member States to
take the necessary steps to become party to the Protocol it gives
them the flexibility to become party when they are ready to do
so, albeit within a reasonable time, and if possible, by 31 December
2011;
- this language has been accepted by the Commission
and the Government is therefore close to securing the changes;
and
- the proposal will still require the EU itself
to deposit its own instrument of accession by 31 December 2011
at the latest.
3.10 On the question of Member States acting in a
coordinated way in relation to areas where Member States retain
their competence, with implied reference to the duty of sincere
cooperation under Article 4(3) TFEU, the Minister says that;
- the Government has pressed
for the deletion of the language in Recital 3 of the draft Decision;
- the Commission is of the view that areas where
Member States retain their competence are interdependent with
the matters falling under the competence of the EU and is keen
for the reference to remain; and
- the Government will not pursue this matter further
because the reference in the recital is not binding.
3.11 Turning to the matter of the IMO reservation
the Minister says that:
- the Government considers the
making of the IMO Reservation to be a matter of shared competence;
- this position was recently confirmed by the Commission—it
is its view that both the EU and its Member States need to make
the IMO Reservation when becoming party to the Protocol;
- there is, however, a supplementary concern that,
if the EU were to make the IMO Reservation and this included sections
1.10 and 1.11 on certification, Member States may in fact be conceding
competence in this area;
- whilst this does not appear to be the Commission's
intention, such an incidental transfer of competence would not
be acceptable;
- in practice, moreover, it is the UK and other
Member States that will issue and accept the certification as
part of their civil liabilities and Port State Control functions—such
a role will not be carried out by the EU institutions;
- more practically, there is potential for difficulties
to arise for ships operating outside the EU in relation to the
certification issued by Member States that have not ratified,
or acceded to, the Protocol; and
- it is unclear how non-EU states would interpret
the EU's IMO Reservation, but in the Government's opinion the
EU's IMO Reservation will not validate certificates issued by
such Member States, whereas insurance certificates issued by UK
authorities will be valid providing the UK makes the IMO Reservation
when ratifying the Protocol.
3.12 In relation to an additional legal base for
the draft Decision the Minister says that:
- the Government, with support
from another Member State, has suggested that Article 81 TFEU
should be cited as an additional legal base for the sake of legal
certainty;
- the latest draft of the proposal contains a footnote
to this effect, but further discussion on this matter is unlikely
to take place until the Committee on Civil Law Matters has issued
a legal opinion, which is due in late February 2011; and
- there is some recognition that there is a technical
problem here that needs to be resolved to reflect the UK and Ireland's
position in respect of the area of freedom, security and justice.
3.13 The Minister reminds us that in his Explanatory
Memorandum on the draft Decision he said that the Government considers
that the Protocol to Title V of the 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 to the proposal or not. He continues, however, that,
in light of further consultation within Government, he now understands
that it has not generally been the practice of the Government
to assert the opt-in in cases such as this, which relate to measures
to which exclusive external competence applies as a result of
an internal exercise of EU competence.
Conclusion
3.14 We are grateful to the Minister for his account
of where matters stand on this amended draft Decision. We note
the success in relation to the subsidiarity issue and the reasons
given for accommodating the Commission's position on sincere cooperation.
3.15 We are unsure as to how the Government sees
the IMO Reservation problem being resolved. We fully support its
concern not unnecessarily to concede competence in this field,
and look forward to a further update on this aspect of the negotiation.
3.16 The circumstances in which the UK asserts
the opt-in Protocol applies to international agreements is a matter
which the Committee is scrutinising in relation to other documents.
So we should be grateful in due course for confirmation of the
proposed legal base and the Government's approach to the opt-in
Protocol.
3.17 In the meantime, the document remains under
scrutiny.
15 (24691) 10979/03: see HC 63-xxx (2002-03), chapter
14 (16 July 2003). Back
16
(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
17
See http://europa.eu/legislation_summaries/environment/water_protection_management/l24090_en.htm.
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