Various Documents considered by the Committee - European Scrutiny Committee Contents

3 Carriage of passengers and luggage by sea



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 baseArticles 100(2) and 218 TFEU; assent; QMV
Basis of considerationMinister's letter of 14 February 2011
Previous Committee ReportHC 428-xiii (2010-11), chapter 5 (19 January 2011)
Discussion in Council31 March 2010
Committee's assessmentLegally and politically important
Committee's decisionNot cleared, further information requested


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.


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  Back

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